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Conservation Compliance – Today!

Conservation Compliance – Today!. East National Technology Support Center June 22, 2009. To access the audio portion: call 888-469-1384 and enter passcode 3507265 CCA Sign-in Sheet - ftp://ftp-fc.sc.egov.usda.gov/ENTSC/Outgoing/Documentation_Certified_Crop_Advisers_June_22_09.pdf. Outline:.

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Conservation Compliance – Today!

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  1. Conservation Compliance – Today! East National Technology Support Center June 22, 2009 To access the audio portion: call 888-469-1384 and enter passcode 3507265 CCA Sign-in Sheet -ftp://ftp-fc.sc.egov.usda.gov/ENTSC/Outgoing/Documentation_Certified_Crop_Advisers_June_22_09.pdf

  2. Outline: • Overview – Elvis Graves, ENTSC, National Technology Specialist • HEL Compliance – Gene Hardee, ENTSC, Agronomist • Wetlands Compliance – Kristin Smith, ENTSC, Ecologist • Reviews and Appeals - Gary Rinkenberger, NHQ, Acting National HEL and Wetlands Specialist • Questions - Anthony Burns, ENTSC, National Technology Specialist East National Technology Support Center

  3. Statutory Authority • Food Security Act of 1985 • Food, Agriculture, Conservation, and Trade Act of 1990 • Federal Agricultural Improvement and Reform Act of 1996 • Farm Security and Rural Investment Act of 2002 • Food, Conservation and Energy Act of 2008 East National Technology Support Center

  4. HEL Provision: Loss of certain USDA Program benefits by persons who: • Pre-1985 Cropland: Produce an annual agricultural commodity on HEL cropland that has an erosion rate that does not meet the definition for substantial reduction in soil erosion East National Technology Support Center

  5. Sodbuster Provision Sodbuster: Produce an annual agricultural commodity on an HEL cropland field that has been “sodbusted” from native vegetation and has erosion rates that do not meet the definition for no substantial increase in soil erosion East National Technology Support Center

  6. Swampbuster Provision: • Swampbuster: Conversion of wetlands for the purpose of making possible the production of an agricultural commodity (annually-tilled crop) East National Technology Support Center

  7. USDA Benefits Affected: Commodity Programs • Dairy Marketing Assistance Program • Agricultural Market Transition Act (AMTA) Production Flexibility Contract Payments • Farm Operating Loans issued under the Consolidated Farm and Rural Development Act East National Technology Support Center

  8. USDA Benefits Affected: Conservation Programs • Conservation Stewardship Program (CSP) • Conservation Reserve Program (CRP) • Environmental Quality Incentives Program (EQIP) • Farmland & Ranchland Protection Program (FRPP). • Grassland Reserve Program (GRP) • Wetlands Reserve Program (WRP) • Wildlife Habitat Incentives Program (WHIP) East National Technology Support Center

  9. HELC Sodbuster Erosion Rules: When there has been an annual agricultural commodity produced on HEL land under either of the following circumstances: Pre-1985 cropping history – HELC - water and/or gully erosion that exceeds the definition for substantial reduction (75% reduction of the potential erodibility not to exceed 2T). Part 512.10 Land that is broken out of NATIVE vegetation – Sodbusted - water and/or gully erosion that exceeds the definition for no substantial increase (T). Part 512.10 East National Technology Support Center

  10. Swampbuster Conversion Rules apply : When production of an agricultural commodity occurs on a wetland converted between 12/23/85 through 11/28/90. When making the production of an agricultural commodity possible on a wetland converted after 11/28/90. East National Technology Support Center

  11. HEL Determinations are Required: When an AD-1026 is received - providing a determination does not already exist. All HELC/WC determinations go with the land, not the landowner. If tract or field redefinitions meet the requirements of the NFSAM, Part 511.22. East National Technology Support Center

  12. Certified Wetland Determinations: • Required by USDA Program Policy (“Yes” AD-1026, boxes 9a, 9b or 10) • Receipt of NRCS CPA-038 • Potential Wetland Violation is Reported (FSA-569) • Violation Discovered During Status Review East National Technology Support Center

  13. HELC/WC Provision Benefits: • Benefits may be reinstated when: • For Swampbuster the wetland is restored or mitigated; • For HELC and Sodbuster the annual commodity crop is produced using an approved conservation system that provides for the specified level of erosion control. East National Technology Support Center

  14. 2002 Farm Bill Changes: Only NRCS employees may make a determination of HELC/WC violations to FSA. TSP’s or partner agencies will not make HELC/WC determinations. East National Technology Support Center

  15. 2008 Farm Bill Changes • Retains Sodbuster and Swampbuster provisions • Determination of "good faith and without intent to violate the law" to be reviewed by USDA's State Executive Director (Farm Services Agency, FSA) with technical concurrence of State Conservationist (Natural Resources Conservation Service, NRCS) or by district director (FSA) with technical concurrence of area conservationist (NRCS). Secretary can impose penalties commensurate with seriousness of violation. East National Technology Support Center

  16. HEL Compliance Gene Hardee, Agronomist ENTSC, Greensboro, North Carolina East National Technology Support Center

  17. - HEL Compliance - Terms HEL – Highly Erodible Land PHEL – Potentially Highly Erodible Land NHEL – Not Highly Erodible Land Sodbusting – Production of an agricultural commodity on an HEL field converted from “native vegetation” after December 23, 1985 HEL Compliance “trigger” – Planting of an agricultural commodity on an HEL field Agricultural Commodity – For Food Security Act purposes, an agricultural commodity is an annually planted crop 6/22/2009 17 East National Technology Support Center East National Technology Support Center

  18. - HEL Compliance - Assessment Tools for HEL Compliance HEL/NHEL Determinations: 1. Sheet and Rill Erosion –> USLE Factors USLE: A = RKLSCP 2. Wind Erosion –> WEQ Factors WEQ: E = f(ICKLV) Planning of Conservation Treatment Systems & Assessment of Compliance –> the Currently Approved Erosion Prediction Technologies 6/22/2009 18 East National Technology Support Center East National Technology Support Center

  19. - HEL Compliance - Determining the Soil Erodibility Index Index of Potential Erosion of a soil map unit at a specific site Erodibility Index of 8 or greater is HEL Sheet and Rill Erosion – (EI = RKLS/T) Wind Erosion – (IC/T) 6/22/2009 19 East National Technology Support Center East National Technology Support Center

  20. - HEL Compliance - HEL Soil Map Unit Lists List soil map units with designations as HEL, PHEL, or NHEL Filed in Section II of the FOTG List was frozen as of January 1, 1990 Only exception is allowances for areas not previously mapped 6/22/2009 20 East National Technology Support Center East National Technology Support Center

  21. - HEL Compliance - Field Determinations Determinations are made on a field basis Determination is made in response to answers to questions 9 or 10a-c on the AD-1026 Establishment of field boundaries and numbers in accordance with established protocols is an FSA role If 1/3 or 50 acres is highly erodible soil map units, the field is HEL PHEL soil map units will be verified as HEL or NHEL through on-site assessment 6/22/2009 21 East National Technology Support Center East National Technology Support Center

  22. - HEL Compliance - 6/22/2009 22 East National Technology Support Center East National Technology Support Center

  23. - HEL Compliance - Field Determination/Redefinition Field redefinition is an FSA role Fields may not be combined or split to avoid a determination of HEL Field Combinations: (HEL & NHEL) - If 1/3 or 50 acres of new field is HEL the entire field is HEL - If less than 1/3 or 50 acres of the new field is HEL, the field portions will continue with their previous designations as HEL or NHEL 6/22/2009 23 East National Technology Support Center East National Technology Support Center

  24. - HEL Compliance - Field Determination/Redefinition When a NHEL field is split or NHEL fields are combined -> complete a new HEL determination. When a previous HEL field is split -> Any field with HEL soil map units remains HEL. Fields with no HEL soil map units are NHEL. A New CPA-026 is required for any re-determination resulting in an HEL field. For re-determinations resulting in NHEL field(s) only make remarks on the AD-1026 that the new field is NHEL. 6/22/2009 24 East National Technology Support Center East National Technology Support Center

  25. - HEL Compliance - Conservation System vs. Conservation Plan Conservation plan -> not required unless the plan is a specific requirement for approval of an exemption or variance Substantial Reduction in Erosion -> provision for compliance on HEL cropped prior to 12/23/85 Converted from native vegetation -> substantial increase in soil loss for these fields is defined as any erosion in excess of soil loss tolerance (T) for the predominant HEL soil map unit in the field 6/22/2009 25 East National Technology Support Center East National Technology Support Center

  26. - HEL Compliance - 6/22/2009 26 East National Technology Support Center East National Technology Support Center

  27. - HEL Compliance - Acceptable Conservation Systems Applicable to first category from previous slide only: Approval by field office if the predicted erosion is < 2T Approval by State Conservationist if predicted erosion is between 2T and 4T If predicted erosion is in excess of 4T the conservation system must be approved by the appropriate division director at NHQ 6/22/2009 27 East National Technology Support Center East National Technology Support Center

  28. - HEL Compliance - Requirements of an HEL Conservation Plan Technical Errors Erosion Estimates for Conservation Compliance 6/22/2009 28 East National Technology Support Center East National Technology Support Center

  29. Wetland Compliance Kristin Smith Ecologist (Environmental Compliance Specialist) East NTSC East National Technology Support Center

  30. Wetland Regulations/Policies • Federal Laws • State Laws • Agency Policies Each has different requirements! East National Technology Support Center

  31. NRCS Responsibilities “NRCS employees must have enough knowledge of Federal, Sate and local laws and regulations to recognize that a contemplated facility or practice may be subject to such laws and regulations.” (GM 450 Part 405.2) East National Technology Support Center

  32. Laws • Food Security Act of 1985, as amended • “Swampbuster” provisions • Agricultural lands and activities • Eligibility for USDA programs • Clean Water Act • Section 404 • All waters of the U.S. • Permit required for discharge of dredged or fill materials • 2/25/05 Joint Guidance Memo to the Field • State Laws and Regulations East National Technology Support Center

  33. NRCS Policy • NRCS Wetland Protection Policy • Executive Order 11990 (1977) “Each agency shall provide leadership and take action to prevent the destruction, loss or degradation of wetlands, and to preserve and enhance natural and beneficial values of wetlands in carrying out the agency’s responsibilities.” • GM Part 190 Section 410.26 • Identify wetlands when providing assistance • Protect wetland functions by avoiding and minimizing impacts • Prohibits NRCS assistance resulting in adverse impacts to wetlands if practicable alternatives exist • Environmental Evaluation (CPA-52) East National Technology Support Center

  34. Wetland Conservation Provisions • Wetland Determinations and Labels – Part 514 • Minimal Effect Exemptions and Good Faith Waivers – Part 515 • Wetland Functional Assessment – Part 516 East National Technology Support Center

  35. Swampbuster • Prohibits: • Production of an agricultural commodity on a wetland converted between 12/23/85 through 11/28/90 • Making the production of an agricultural commodity possible on a wetland converted after 11/28/90 East National Technology Support Center

  36. Swampbuster • Agricultural commodity • Annually planted crops • After 11/28/1990, forages also prohibited • Making production possible • Alteration of the hydrology and/or removal of woody vegetation that: • Allows or would allow production of an ag commodity where not previously possible • After 11/28/90, allows forage production or pasture and hayland use • Farmable more years than previously possible • Reduces crop stress and allows increased yield East National Technology Support Center

  37. Wetland Criteria • Three factors • Hydric soil • Hydrophytic vegetation • Wetland hydrology • Must meet the definition of all three wetland factors East National Technology Support Center

  38. Determinations • Delineate • Outline the boundaries of a wetland determination • Can be on paper OR on the ground • Determine • Make a technical decision regarding whether or not an area is a wetland • Certify • Decision that a wetland determination is of sufficient quality to make a determination of ineligibility for USDA program benefits • All determinations made for Food Security Act purposes after July 3, 1996 considered “certified” East National Technology Support Center

  39. Certified Determinations • Made in response to: • AD-1026 • FSA-569 or whistleblower complaint • Violations discovered during status reviews • CPA-038 • Using • On-site methods • Off-site methods East National Technology Support Center

  40. Labels – Non-Wetlands • Non-wetlands (NW) • Under normal conditions do not meet wetland criteria • Wetlands manipulated before 12/23/85 to the extent do not meet wetland criteria AND where an agricultural commodity not produced (not a PC), if not abandoned • Other waters of the United States not meeting wetland criteria East National Technology Support Center

  41. Labels - Wetlands • Wetlands (W) • Natural wetlands • Wetlands farmed under natural conditions • No removal of woody vegetation • No manipulation of water regimes • Manipulated Wetlands (WX) • Not for the purpose of commodity production (“intent”) AND • Production not made possible • Artificial Wetland (AW) • Non-wetland under natural conditions • Exhibits wetland characteristics due to human activity East National Technology Support Center

  42. Areas in Ag Production • Prior Converted Cropland (PC) • Manipulated prior to 12/23/85 • Capable of producing a commodity on 12/23/85 • Commodity produced at least once before 12/23/85 • Does not meet FW hydrology criteria • Hydrologic manipulations can be maintained or improved • Farmed Wetlands (FW) Farmed Wetland Pasture (FWP) • Manipulated prior to 12/23/85 • Meets appropriate FW/FWP hydrology criteria • Not abandoned • Can be maintained East National Technology Support Center

  43. Wetland Conversions • Converted Wetland (CW) • Area that was formerly wetland • Manipulated and an agricultural commodity planted between 12/23/85 and 11/28/90 • Production not possible but for manipulation action • Producer in violation if commodity planted or additional manipulation • Can maintain to scope and effect of original manipulation • Converted Wetland (CW+year) • Area that was formerly wetland • Manipulated after 11/28/90 for the purposes of or to have the effect of making production possible • Production not possible but for action • Producer in violation indefinitely until wetland restored or mitigated East National Technology Support Center

  44. Exemptions • Converted Wetland Technical Error (CWTE) • Incorrect determination by NRCS results in noncompliance • Can only be approved at the State level • Third Party Conversion Exemption (TP) • USDA participant did not control action • Conversion by persons unassociated with the USDA program participant • Indirect effect of action taking place off the tract East National Technology Support Center

  45. Exemptions • Minimal Effect Exemption (MW) • Wetlands converted through an action having minimal effect on wetland functions and values • State-level procedures • Requested by the USDA participant • Pre- or post-conversion • Functional assessment required • Minimal effect agreement may be required if special conditions are applied • 404 permit may be required East National Technology Support Center

  46. Exemptions • COE Permit with Mitigation Exemption (CPD) • No Swampbuster violation if • Permit issued under Section 404 AND • Acreage and functions of the converted wetland adequately mitigated • No easement required East National Technology Support Center

  47. Mitigation Exemption • Mitigation (MIW and MWM) • Requested to restore eligibility for USDA benefits • Mitigate for lost acreage, value and functions: • Restoration of a converted or degraded wetland • Enhancement of a degraded wetland • Creation of a new wetland • (note: preservation not authorized) • On-site or off-site • Functional assessment required • Mitigation plan and/or agreement required - implemented in advance • Easement usually required • Should be in same 8-digit HUC • Cannot be funded by the Federal government • Approved mitigation banks can be used East National Technology Support Center

  48. Good Faith Waiver • Good Faith Waivers (Made by FSA) • USDA participant acted in good faith without intent to violate Swampbuster provisions • FSA determines acted in good faith • With information and technical concurrence from NRCS • NRCS approves plan or agreement for restoration or mitigation • Eligibility regained by implementing plan or agreement within 1 year • NRCS monitors implementation • Revert to previous wetland label if restored or MIW if mitigated East National Technology Support Center

  49. “Out-Dated” Labels • Labels from previous editions of the FSA Manual • Commenced Conversion (CC) • Converted Wetland for Non-Agricultural Purposes (CWNA) • Not Inventoried (NI) • See 514.50 and 514.60 in NFSAM for more info East National Technology Support Center

  50. Scope and Effect • Refers to documentation of • Wetland hydrologic conditions and manipulation that occurred before 12/23/85 or • Planned hydrologic manipulations on previously manipulated wetlands • Used to determine if an action is maintenance or improvement • Completed when: • Conducting an initial determination for FW and FWP • Evaluating an FSA-569 regarding post-1985 manipulation • Requested by a USDA participant • Follow guidance in 516.10 of FSA Manual • Document in the administrative record/case file East National Technology Support Center

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