USDA's Natural Resources Conservation Service will have to come up with a new rule explaining how it plans to determine whether farmers have wetlands on their property after a federal judge tossed a 2020 rule in response to a lawsuit from the National Wildlife Federation.
The issue in the case was whether certain wetland and non-wetland determinations — those made between 1990 and 1996 — have been properly “certified” by the agency. NWF alleged NRCS changed its policy in 2013 and formalized it in 2020, allowing old maps to be used so long as they were “legible.”
NWS said that was a big change from the previous policy, which had called on NRCS to evaluate maps for accuracy.
U.S. District Judge Tanya Chutkan agreed. “[T]he court finds that the record reflects a change in agency policy, both in writing and in practice,” she said in her Feb. 22 decision, which came more than three years after final briefs were filed in the case. The judge said NRCS violated the Administrative Procedure Act by not seeking comment on the changes, but she declined to rule on other claims brought under the Endangered Species Act and National Environmental Policy Act.
NWF attorney Bill Eubanks of Eubanks & Associates said in an email to Agri-Pulse, “Unless and until NRCS issues a new proposed rule and finalizes it, the agency will do what it did before this rule in terms of wetland certification, which as explained in the ruling is to require actual on-the-ground verification of pre-1996 determinations to ensure that they are certified, before any activity to fill or disturb wetlands occurs for agricultural purposes.”
Under Swampbuster rules, producers cannot get USDA subsidies if they convert wetlands to farmland until the functions of the wetlands are restored.
In 2013, NRCS decided to start certifying pre-1996 determinations to deal with a backlog of requests from farmers, mainly in the Prairie Pothole states, seeking to take advantage of higher commodity prices.
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Citing an Office of Inspector General report, Chutkan said “NRCS began treating pre-1996 determinations as certified so long as they included legible maps and informed farmers of their appeal rights.”
That inspector general's report also said the agency “had made over 3 million wetland determinations using these maps and that 60 percent of these determinations were inaccurate.”
“After 1996 and the completion of many internal studies, NRCS policy was not to consider wetland determinations completed from 1990-96 certified unless the determination was appealed and upheld, a process which required field visits and supporting documentation,” the report said. “NRCS published many factsheets explaining wetland conservation compliance that stated that most wetland determinations completed prior to July 3, 1996, are not considered certified.”
The rule allowed USDA to use “old, inaccurately drawn maps that were rejected or discounted for decades due to their inaccuracy,” NWF said in a 2019 news release. In addition, NRCS allowed use of “weather data from a historically dry range of years” that occurred decades prior as well as “aerial maps taken at the hottest time of the year.
“Together, these practices will miss many seasonally flooded wetlands — excluding many seasonal wetlands from Farm Bill wetlands protection and potentially harming habitats for millions of birds,” the organization argued.
The judge said in her opinion, “The record supports a significant likelihood that farmers would not convert wetlands if the determinations were revised."
USDA referred questions about the case to the Justice Department.
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