A court voided USDA's wetland rule two years ago, and the replacement filed Tuesday reaches the same answer with one of the two tests removed
The rule everybody was working from was thrown out in February 2024.
On the twenty-second of that month the United States District Court for the District of Columbia decided National Wildlife Federation v. Lohr, holding that the Natural Resources Conservation Service had violated the Administrative Procedure Act by changing its position on the certification of pre-1996 wetland determinations without giving a reasoned explanation. The court vacated the 2020 final rule and sent the question back to the agency. On Tuesday USDA answered, with an interim rule that takes effect the moment it publishes and reaches substantially the position the court struck down, this time with fifteen pages of history attached.
The subject is swampbuster, the wetland conservation provisions Congress attached to farm program eligibility in the 1985 Farm Bill. A producer who converts a wetland can lose commodity payments, and the document that tells a producer where the wetlands are is a wetland determination. Certification is what makes that document something a farmer can rely on.
The 1996 Farm Bill settled the durability question. A final certification stays valid as long as the land is devoted to agricultural use, or until the person affected asks for a review. What it did not settle was which older determinations counted as certified in the first place, because the regulation as written only addressed determinations made after July 3, 1996.
That gap produced twenty years of inconsistency, and the court described it precisely. From 1997 to about 2013, NRCS rejected most pre-1996 determinations as certified. From 2013 it began accepting them, without any formal agency action, and in 2020 it wrote the more lenient practice into a rule. The court called that a change of policy far more lenient toward certifying wetland maps, and found no reasoned explanation for it.
The agency's own account of why staff were inconsistent is the most useful passage in the document. Policy issued after a 2017 Inspector General audit certified a 1990 to 1996 determination on two conditions: that the person was notified and given appeal rights, and that the map was of sufficient quality to locate designated wetlands against other ground features. The first condition is a fact anybody can check. The second was not defined anywhere. A field officer looking up the quality standard in 7 CFR part 12 found only that certification means the determination is of sufficient quality to determine ineligibility, which is the same words in a different order, and was then left to decide.
The interim rule removes the second condition. The amended text at 7 CFR 12.30(c)(1) now reads that all wetland determinations issued after November 28, 1990 are considered certified if the person affected was notified of the certification and provided information on the right to appeal.
USDA grounds that in reliance rather than in science. It cites FCC v. Fox Television Stations and Perez v. Mortgage Bankers Association for the proposition that an agency changing course must weigh the interests of parties who arranged their affairs around the old position, and gives the concrete example: a producer who installs drainage on ground a certified determination showed as non-wetland. The department also states, citing Loper Bright Enterprises v. Raimondo, that whatever deference its earlier readings once drew from the courts ended in 2024, and that it is following the statutory text rather than asking for deference now.
Two procedural points explain why this arrives as an interim rule that is already in force. Section 1246 of the Food Security Act exempts Title XII regulations from the Paperwork Reduction Act and directs that they be published as interim rules effective on publication with comment afterward. The Secretary separately invoked 5 U.S.C. 808(2) to waive the sixty-day Congressional Review Act delay, on the ground that delay would leave producers without clarity.
OMB designated the rule not significant. Comments close sixty days after publication, and the case that produced it was remanded rather than closed.
