USDA rule treats 1990-1996 wetland maps as certified, answering 2024 swampbuster ruling; comments due Sept. 28

“All wetland determinations issued after November 28, 1990, are considered certified if the person affected by the certification was notified of the certification and provided information on the right to appeal.” That sentence, now part of 7 CFR 12.30, is the whole of the regulatory change USDA published on July 29^[1]. It reaches any farmer or landowner whose fields carry a wetland map drawn between late 1990 and mid-1996, a period when the agency’s treatment of those maps kept changing^[1].

The interim rule took effect the day it was published. Comments are due September 28^[1].

The details: what the new sentence settles

The rule rewrites one paragraph, 12.30(c)(1), in the conservation compliance regulations that carry out the 1985 farm law’s swampbuster provisions^[1]. Those provisions make a producer ineligible for most USDA commodity and conservation programs, farm loans and crop insurance premium subsidies if the producer plants a commodity on a wetland converted after December 23, 1985, or converts a wetland after November 28, 1990, to make planting possible^[1].

A wetland determination is the Natural Resources Conservation Service’s (NRCS) finding on whether an area is a wetland, with its type and size; the boundaries go on a map^[1]. Producers usually trigger one by filing form AD-1026 and checking that they plan land clearing, leveling or drainage^[1]. Certification is what makes the map binding. Since the 1996 farm law, a certified determination stays “valid and in effect as long as the area is devoted to an agricultural use” or until the affected person asks for a review^{[1, 5]}.

Determinations made after July 3, 1996, were already certified by regulation^[1]. The gap was the five and a half years before that. Under the new text, a determination from that window counts as certified on two conditions^[1]:

• the affected person was notified that it had been certified, and
• the person was told of the right to appeal.

That drops a third test from the 2018 and 2020 versions of the rule: that the map be “of sufficient quality,” meaning legible enough to tell wetland areas from other ground features^{[1, 4]}. Those versions also required the determination to be on the June 1991 version of the agency’s determination form^[1]. USDA says that under its 2010 policy, staff had to decide what “sufficient quality” meant “without any additional guidance”^[1].

What if a producer disagrees with an old map?

Nothing changes there. A producer can still request a review of a certified determination, and existing rules allow one when a natural event has changed the land’s topography or hydrology or when NRCS agrees there is an error^[1]. What the agency gives up is the power to reopen a map on its own. The preamble says “NRCS has no independent authority to question prior certified wetland determinations of land in agricultural use”^[1]. USDA’s release puts it the same way: a certified determination cannot be reinterpreted or replaced unless the producer asks^[2].

How did 1990s wetland maps end up in court?

The 1990 farm law created certification and told USDA to give owners notice and an appeal before a map became final^[1]. The conference report said the process was meant “to provide farmers with certainty as to which of their lands are to be considered wetlands for purposes of Swampbuster”^[1].

Certainty did not last. Under a January 1994 agreement with EPA, the Army and the Interior Department, the then-Soil Conservation Service began reviewing older maps for Clean Water Act use and replacing some^[1]. Sen. Chuck Grassley introduced legislation in January 1995 to halt new determinations, and Agriculture Secretary Dan Glickman ordered a moratorium the day after he was sworn in that April^[1]. The 1996 farm law, signed April 4, 1996, said a certified determination would not be redone unless the affected person asked^{[1, 5]}.

The September 1996 regulations, though, spoke only to determinations made after July 3, 1996. Their preamble said earlier certified maps would “remain valid,” but the regulatory text was silent^[1]. From 1997 to 2013, according to the 2024 court ruling as summarized in the new rule, NRCS did not treat most pre-1996 determinations as certified; it then began accepting them^[1]. Agri-Pulse reported that the 2013 shift came as the agency worked through a backlog of farmer requests, mainly in the Prairie Pothole states, during a period of high commodity prices^[3].

A USDA Office of Inspector General audit flagged the inconsistency, and NRCS wrote its answer into policy in January 2017^[1]. That policy became a December 2018 interim rule and an August 28, 2020, final rule^{[1, 4]}.

The National Wildlife Federation sued in August 2019^[1]. On February 22, 2024, U.S. District Judge Tanya Chutkan in Washington held that NRCS had violated the Administrative Procedure Act by changing policy without a reasoned explanation, and vacated the 2020 rule^{[1, 3]}. The court found the agency had become “far more lenient towards certifying wetland maps, informally beginning around 2013 and formally in the 2020 final rule”^[1]. Agri-Pulse reported that the judge cited the inspector general’s finding that “60 percent of these determinations were inaccurate”^[3].

In the field: drainage plans in pothole country

The practical stakes sit with tile and surface drainage. USDA’s own example in the rule is a producer whose determination shows where wetlands are not, and who relies on that when planning drainage that can raise crop productivity^[1]. With the map certified, that work can go ahead on non-wetland acres without putting program eligibility at risk, and the producer skips the “administrative and technical wetland determination process” of getting a new one^{[1, 2]}.

The fight has centered on the Prairie Pothole states^[3]. A Government Accountability Office (GAO) review looked at enforcement there. It found NRCS identified fewer than five farmers a year with wetland violations from 2014 through 2018 on roughly 417,000 tracts in North Dakota and South Dakota^[6]. GAO also found that the Farm Service Agency granted 243 of 301 good-faith waiver requests from 2010 to 2018^[6].

Conservation groups have argued that older maps are the problem. A 2019 coalition letter on the 2018 interim rule, filed by groups including the Indiana Wildlife Federation, said the approach “systematically excludes seasonal wetlands from wetland maps that form the basis for producer compliance”^[7]. The letter said pre-1996 determinations had underidentified wetlands by as much as 75% and that summer aerial imagery misses basins that hold water in spring, citing a South Dakota count of wet basins 73% lower in July than in May^[7]. Those figures are the groups’ and were not tested in the new rule.

USDA answers with reliance. The preamble says any rule that questioned the old determinations “would destroy producers’ certainty” about future decisions and “cast into doubt decisions made decades ago”^[1]. It also notes that after the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, courts no longer defer to an agency’s reading of a statute, and says the rule rests on the statutory text itself^[1].

On the Hill and at the agency

No vote is needed. Section 1246 of the 1985 law requires conservation compliance rules to be published as interim rules effective on publication, with comment afterward^[1]. USDA used that to waive the Congressional Review Act’s 60-day delay^[1]. The Office of Management and Budget (OMB) rated the rule not significant, and USDA says it imposes no more than de minimis costs^[1].

The rule skips an environmental assessment and Endangered Species Act consultation, reasoning that Congress left no discretion on the point^[1]. The 2024 ruling did not reach those claims; Agri-Pulse reported that the judge declined to decide them^[3]. Deputy Secretary Stephen Vaden signed the rule^[1].

“We want to empower farmers, ranchers and landowners to do what they do best – farm the land,” NRCS Chief Colton L. Buckley said in the agency’s release^[2].

What to watch

• Sept. 28, 2026: comments close on Docket NRCS-2026-0067^[1].
• After the comment period: USDA can finalize the interim text or change it^[1].

The 2024 ruling faulted the agency for a policy change it never explained. This rule spends most of its eight pages on that explanation^[1]. Whether that answers the court, and whether the National Wildlife Federation goes back to it, is not yet known.