The United States Department of Agriculture USDA has issued an interim rule effective July 29, 2026, aimed at clarifying and certifying wetland determinations made between November 28, 1990, and July 3, 1996. This significant regulatory action responds to a February 22, 2024, federal court decision that vacated a previous NRCS rule. The USDA seeks to align its regulations with the governing statute, legislative history, and congressional intent of the Food Security Act, while also protecting the long-standing reliance interests of agricultural producers.
The Foundation of Wetland Conservation Policy
The framework for wetland conservation in federal agricultural programs was established by Title XII of the Food Security Act of 1985, commonly known as the 1985 Farm Bill. This legislation linked eligibility for most USDA commodity and conservation programs, loans, and crop insurance subsidies to specific land conservation measures. Critically, its wetland conservation WC provisions stipulate that after December 23, 1985, a program participant becomes ineligible for benefits if they produce an agricultural commodity on a converted wetland. Furthermore, after November 28, 1990, participants are prohibited from converting a wetland in a way that enables agricultural commodity production if they wish to maintain program eligibility. The USDA's regulations implementing these Highly Erodible Land Conservation HELC and WC provisions are codified in 7 CFR part 12.
The Natural Resources Conservation Service NRCS plays a pivotal role in assisting farm program participants to comply with WC provisions by providing certified wetland determinations. These determinations are decisions on whether an area constitutes a wetland, including its type and size, with boundaries delineated on a certified map. Participants initiate this process by completing a self-certification form AD-1026, indicating any activities that might alter land and potentially convert a wetland. If such alterations are noted, the request is referred to NRCS for evaluation and a potential new or updated certified wetland determination.
Evolution of Wetland Determination Certification
The concept of wetland certification was formally introduced by the Food, Agriculture, Conservation, and Trade Act of 1990, the 1990 Farm Bill. This marked a critical juncture in how wetland determinations were treated. Previously, NRCS would simply issue a determination. The 1990 Farm Bill introduced the requirement for certification, ensuring that producers were informed of the determination and their appeal rights.
In 2018, USDA published an interim rule in the Federal Register 83 FR 63046-63052 to amend 7 CFR part 12 and provide greater transparency regarding how wetlands are delineated, determined, and certified. This rule specified that wetland determinations made between November 28, 1990, and July 3, 1996, would be considered certified if they met three conditions: issued on specific June 1991 forms NRCS-CPA-026 or SCS-CPA-026, the affected person was notified by NRCS or SCS of the certification, and the map was of sufficient quality to determine ineligibility for program benefits.
This 2018 interim rule faced legal challenge from the National Wildlife Federation NWF in 2019, which argued that NRCS violated the Administrative Procedure Act APA by changing its policy on pre-1996 wetland certifications without a reasoned explanation. In response, NRCS issued a final rule in 2020 85 FR 53137-53152, adopting the interim rule's provisions with minor adjustments, such as clarifying that field or subfield basis determinations applied to post-final rule issuances.
The Lohr Decision and its Implications
The legal challenge culminated in the United States District Court for the District of Columbia's decision on February 22, 2024, in National Wildlife Fed'n v. Lohr, 2024 WL 727695 D.D.C. 2024. The court ruled that NRCS indeed violated the APA. It found that NRCS had altered its policy regarding the certification of pre-1996 wetland determinations without providing a sufficient reasoned explanation. The court noted that NRCS's policy had become
