[Federal Register Volume 91, Number 144 (Wednesday, July 29, 2026)]
[Rules and Regulations]
[Pages 47779-47786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-15284]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 91, No. 144 / Wednesday, July 29, 2026 /
Rules and Regulations
[[Page 47779]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 12
[Docket ID NRCS-2026-0067]
RIN 0578-AA73
Highly Erodible Land and Wetland Conservation
AGENCY: Office of the Secretary, USDA.
ACTION: Interim rule with request for comments.
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SUMMARY: The United States Department of Agriculture (USDA) is amending
its regulations to ensure that wetland determinations issued after
November 28, 1990, have been and will be certified as sufficient to
serve as the basis for determining ineligibility for certain USDA
program benefits under the Wetland Conservation provisions of the Food
Security Act of 1985, as amended. Certification requires notifying the
affected person at the time of the determination and informing them of
their appeal rights. This interim rule addresses inconsistencies in how
wetland determinations certified and issued between November 28, 1990,
and July 3, 1996, have been treated. It also responds to a February 22,
2024, Federal court ruling that determined that Natural Resources
Conservation Service (NRCS) did not fully meet procedural requirements
in its 2020 final rule concerning certification of pre-1996
determinations. This interim rule aligns USDA's regulations with the
governing statute, legislative history, and congressional intent.
DATES: This rule is effective July 29, 2026. Comments concerning this
rule must be received by September 28, 2026.
ADDRESSES: Comments, identified by Docket ID NRCS-2026-0067, should be
sent using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments; or
Mail or Hand-Delivery: Public Comments Processing,
Attention: National Leader for Wetland and Highly Erodible Land
Conservation, USDA, Natural Resources Conservation Service, 1400
Independence Avenue SW, Washington, DC 20250. In your comment, please
specify the Docket ID NRCS-2026-0067.
All timely comments will be included in the rulemaking record and
made available for public inspection at https://www.regulations.gov,
including any personal information provided. Do not submit any
information you consider to be private, confidential business
information, or other information whose disclosure is restricted by
statute.
FOR FURTHER INFORMATION CONTACT: Jason Outlaw; telephone: 202-720-7838;
or email: [email protected]. Individuals with disabilities who
require alternative means for communication should contact the USDA
Target Center at (202) 720-2600 (voice and text telephone (TTY mode))
or dial 711 for Telecommunications Relay Service (both voice and text
telephone users can initiate this call from any telephone).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Purpose
III. History and Background of Wetland Determination Certification
A. 1985 Farm Bill--Establishment of Wetland Conservation
Provisions
B. 1990 Farm Bill--Introduction of Certification
C. 1994 Memorandum of Agreement--An Effort To Provide One Answer
D. 1995 Moratorium on Wetland Determinations--Congressional
Concerns
E. 1996 Farm Bill--Further Statutory Clarification
F. Post-1996 Farm Bill Policy
IV. Summary of This Rulemaking
A. What This Rule Means
B. Change in Policy Reflected in This Rule
C. Justification for the Interim Rule
V. Regulatory Certifications
A. Executive Orders 12866, 13563, and 14192
B. Regulatory Flexibility Act
C. Environmental Review
D. Executive Order 13175
E. Unfunded Mandates Reform Act
F. Paperwork Reduction Act, Congressional Review Act, and
Effective Date
G. E-Government Act Compliance
I. Background
Title XII of the Food Security Act of 1985 (``the 1985 Farm Bill'';
Pub. L. 99-198) encourages USDA program participants to adopt land
conservation measures by linking eligibility for program benefits to
farming practices on highly erodible land and wetlands. Program
benefits include most USDA commodity and conservation programs, loans,
and crop insurance subsidies. In particular, the wetland conservation
(WC) provisions state that after December 23, 1985, a program
participant is ineligible for certain USDA program benefits if they
produce an agricultural commodity on a converted wetland. After
November 28, 1990, participants may not convert a wetland that makes it
possible to produce an agricultural commodity and still maintain
eligibility for program benefits. However, if program participants meet
certain conditions, some actions are exempt from the WC ineligibility
provisions. The USDA regulations implementing the Highly Erodible Land
Conservation (HELC) and WC provisions of the 1985 Farm Bill are found
in 7 CFR part 12.
NRCS helps farm program participants comply with WC provisions by
providing certified wetland determinations. As discussed later in this
rule, the Food, Agriculture, Conservation, and Trade Act of 1990 (``the
1990 Farm Bill''; Pub. L. 101-624, 104 Stat. 3573) introduced the
concept of wetland certification. A wetland determination is a decision
regarding whether an area is a wetland, including identifying the
wetland type and size, see 61 FR 47027 (September 6, 1996). The
boundary of each wetland is delineated on a certified wetland
determination map, see 83 FR 63052 (December 7, 2018). To receive a
wetland determination, USDA program participants must complete a HELC
and WC self-certification form (AD-1026) and indicate on the form
whether they have conducted (or are planning to conduct) activities
that may alter land in a manner that could result in the conversion of
a wetland. Examples of activities that may convert a wetland include
land clearing, leveling, or the installation of drainage systems.
If the AD-1026 indicates that land is being altered in a manner
that could result in wetland conversion, the
[[Page 47780]]
request is referred to NRCS to evaluate whether a certified wetland
determination needs to be completed. If a previous wetland
determination exists for the area in question, NRCS must determine its
certification status. If the previous determination is certified, that
certification remains valid and effective until the person affected by
the certification requests that NRCS review the certification, see 61
FR 47036 (September 6, 1996). If the previous determination is not
certified, NRCS must conduct a new determination.
On December 7, 2018, USDA published an interim rule in the Federal
Register (83 FR 63046-63052) that amended 7 CFR part 12 to provide USDA
program participants and stakeholders transparency concerning how USDA
delineates, determines, and certifies wetlands. Regarding the
certification of wetland determinations, the interim rule made the
following changes to 7 CFR part 12.30:
Wetland determinations made after November 28, 1990, and
before July 3, 1996, are certified wetland determinations if: (1) the
determination was issued on the June 1991 version of forms NRCS-CPA-026
or SCS-CPA-026; (2) the person affected by the determination was
notified by NRCS (or, by the Soil Conservation Service (SCS) prior to
October 1994) that the determination had been certified; and (3) the
map depicting the determination is of sufficient quality to determine
ineligibility for program benefits;
For a wetland determination map to be of sufficient
quality to determine ineligibility for program benefits, the map
document must be legible enough to identify the wetland areas from
other ground features; and
Wetland determinations will be certified by NRCS on a
field or subfield basis.
On August 9, 2019, the National Wildlife Federation (NWF) filed a
suit in the United States District Court for the District of Columbia.
Among other issues, NWF contended that NRCS's 2018 interim rule
violated the Administrative Procedure Act (APA) by changing its policy
regarding the certification status of wetland determinations made prior
to 1996 without giving a reasoned explanation. NRCS notified the court
that it intended to issue a final rule so the court granted a stay
while that rule could be published.
On August 28, 2020, USDA published a final rule in the Federal
Register (85 FR 53137-53152) that adopted the provisions of the interim
rule, making some changes in response to public comments received on
the 2018 interim rule. In response to comments, NRCS relocated language
on conducting certified wetland determinations on a field or subfield
basis from 7 CFR part 12.30(c)(1) to 7 CFR part 12.30(a)(3) to clarify
that the provision only applied to determinations made after the
publication of the final rule (prior to this change, determinations
were conducted on a tract basis). The final rule made no additional
changes to the interim rule regarding certification of wetland
determinations, see 7 CFR part 12.30.
On February 22, 2024, the United States District Court for the
District of Columbia issued a decision, finding that NRCS violated the
APA by changing its policy regarding the certification of wetland
determinations made prior to 1996 without providing a reasoned
explanation (National Wildlife Fed'n v. Lohr, 2024 WL 727695 (D.D.C.
2024)). In its decision, the court compared the text of the 1996
regulations with the 2020 final rule and found that NRCS changed its
policy to be ``far more lenient towards certifying wetland maps,
informally beginning around 2013 and formally in the 2020 final rule''
(Lohr, 2024 WL 727695, at 8 (D.D.C. 2024)). More specifically, the
court based its decision not only on the 2020 final rule, but also on
an assessment of agency practice, indicating that from 1997 to 2013,
NRCS did not consider most wetland determinations made prior to 1996 as
certified, but then changed its process to be more lenient and accept
them as certified, despite no official agency action. The 2024 district
court decision vacated (voided) the final rule, remanding (sending) the
case to NRCS for further deliberation.
II. Purpose
NRCS is publishing this interim rule to adhere to the statutory
Farm Bill provisions regarding certification and duration of wetland
determinations. As stated in the Lohr decision, the APA requires an
agency to provide a reasoned explanation when changing its prior policy
position. This interim rule provides the history of previous statutes
and regulations and explains NRCS's implementation of policy regarding
the certification status of wetland determinations over time.
The APA also requires an agency to consider any serious reliance
interests that may be affected by a change in policy (FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009); see also Smiley v.
Citibank (South Dakota), N. A., 517 U.S. 735, 742 (1996)). Considering
reliance interests ensures that policy changes do not unfairly disrupt
the expectations of regulated parties who have structured their actions
around existing policy. Producers who received a certified wetland
determination between November 28, 1990 and July 3, 1996, faced
changing policy regarding those determinations. This created
uncertainty for these producers. Producers have relied on their
certified wetland determinations (since 1990) when making decisions
about their agricultural operations. For example, if a producer has a
wetland determination showing where wetlands are located and conversely
where wetlands are not located, the producer relies on this information
when planning to install drainage structures that can improve crop
productivity. By relying on their certified wetland determinations,
producers can take these actions on non-wetlands without risk to their
eligibility for USDA program benefits. Prior versions of the wetland
determination policy did not account for producers' reliance interests
and were contrary to statute when post-1990 determinations were
considered not certified. By maintaining the certification status of
these wetland determinations, a producer can rely on these
determinations that were issued as certified between 1990 and 1996.
Any rule that questioned these prior determinations would destroy
producers' certainty over not only future decision-making regarding
farmland but also cast into doubt decisions made decades ago. The
agency's policy changes and clarifications made in this rule are
designed to conform to the statute while protecting producers' reliance
interests. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 106 (2015)
(noting that the APA requires agencies to ``take[ ] into account'' the
``serious reliance interests'' affected by a policy change).
To the extent that NRCS may have received deference from the courts
for its previous policies towards wetland determinations made prior to
1996, that deference ended in 2024. The Supreme Court determined that
courts should not defer to an agency's interpretation of the text of a
statute. See Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
Regardless of any prior deference, this interim rule follows the
statutory language governing wetland determination certification. 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.
[[Page 47781]]
III. History and Background of Wetland Determination Certification
A. 1985 Farm Bill--Establishment of Wetland Conservation Provisions
Title XII of the 1985 Farm Bill (Pub. L. 99-198, 99 Stat. 1504-08)
established the WC provisions (informally known as ``swampbuster'').
The original provisions stated that producers were ineligible for
certain USDA program benefits if they produced an agricultural
commodity on a converted wetland, unless an exemption applied. The SCS,
which was renamed NRCS in October 1994, began identifying wetlands on
agricultural lands after the enactment of the 1985 Farm Bill (signed
into law on December 23, 1985) and the interim final rule for 7 CFR
part 12 (51 FR 23496-23508 (June 27, 1986)). SCS (and later NRCS)
completed wetland determinations using information such as soil surveys
and hydric soil lists, U.S. Fish and Wildlife Service (USFWS) National
Wetland Inventory maps, USDA aerial imagery, and site visits. According
to the regulations, producers could appeal these determinations.
However, Congress provided little direction in the 1985 Farm Bill as to
how wetlands were to be identified other than the definitions for
``wetland'', ``converted wetland'', ``hydric soil'', and ``hydrophytic
vegetation.'' The Secretary of Agriculture (Secretary) was required to
develop lists of criteria for the identification of hydric soils and
hydrophytic vegetation and was mandated to consult with the Secretary
of the Interior when implementing the provisions in the 1985 Farm Bill.
B. 1990 Farm Bill--Introduction of Certification
The 1990 Farm Bill (Pub. L. 101-624, 104 Stat. 3573) directed the
Secretary to delineate wetlands on wetland delineation maps for the
first time and introduced the concept of certification, stating that:
Upon providing notice to affected owners or operators, the
Secretary shall certify each such map as sufficient for the purpose
of making determinations of ineligibility for program benefits under
section 1221 and shall, in accordance with section 1243, provide an
opportunity to appeal such delineations to the Secretary prior to
making such certification final.
The conference report accompanying the 1990 Farm Bill offered
background on certification stating, ``The Managers agree that the
certification process is to provide farmers with certainty as to which
of their lands are to be considered wetlands for purposes of
Swampbuster.'' (136 Cong. Rec. 32238 (1990)). The report also provides
a description of the ``current USDA wetland delineation process'' and
notes that ``this process is adequate for certification of any new maps
delineated after the date of enactment of this Act.''
USDA issued regulations finalizing changes to the HELC and WC
provisions in 7 CFR part 12, as required by the 1990 Farm Bill, in a
final rule published at 56 FR 18630-18641 (Apr. 23, 1991). Through
these regulations, USDA added this instruction to 7 CFR part 12.30(c):
``The wetland determination and wetland delineation shall be certified
as final by the SCS official 45 days after providing the [affected]
person notice or, if appeal is filed with SCS, after a final appeal
decision is made by SCS.'' (56 FR 18640).
In May 1991, SCS revised part 512 of the National Food Security Act
Manual (NFSAM) to add a ``Procedure for certification'' consistent with
direction provided in the 1990 Farm Bill. The policy required SCS to
``certify that the wetland delineations on each tract are sufficient to
make determinations of eligibility for USDA program benefits'' and to
``Notify the [affected] person that a wetland determination has been
made, and that the determination has been certified as correct and
sufficient for determining eligibility for USDA programs.''
To help implement this policy, SCS revised form SCS-CPA-026
(``Highly Erodible Land and Wetland Conservation Determination''), and
beginning in June 1991, field offices used the updated form--which
included the certification statement ``I certify that the above
determination is correct and adequate for use in determining
eligibility for USDA program benefits.'' The reverse side of the form
provided appeal rights.
As described above, the regulations and policy resulting from the
1990 Farm Bill provided for wetland determination certification.
Congress clearly stated that ``the certification process is to provide
farmers with certainty as to which of their lands are to be considered
wetlands for purposes of Swampbuster'' (136 Cong. Rec. 32238 (1990)).
All affected persons who received certified determinations completed
after the 1990 Farm Bill's enactment date were provided with a
certification statement by a USDA official and information notifying
them of their appeal rights; therefore, these determinations are
certified as a matter of law.
C. 1994 Memorandum of Agreement--An Effort To Provide One Answer
Following an August 1993 recommendation from the White House Office
on Environmental Policy, USDA entered into a memorandum of agreement
(MOA) with the Environmental Protection Agency (EPA), the Department of
the Interior, and the Department of the Army. The purpose of the MOA
(which was signed in January 1994) was to minimize duplication and
inconsistencies when implementing the WC provisions and Section 404 of
the Clean Water Act (CWA), which had its own requirements that could
affect agricultural wetlands. The MOA outlined the agreed upon ``manner
in which wetland delineations and certain other determinations of
waters of the United States made by the [USDA] under the [WC
provisions] will be relied upon for purposes of CWA Section 404'' (59
FR 2921). In effect, the MOA attempted to provide a single answer
regarding the location of wetlands that could sufficiently implement
both Section 404 of the CWA and the WC provisions.
The 1994 MOA had a significant impact on future NRCS policies and
procedures related to wetland determination certification. Its
implementation formalized a process, described in the paragraphs below,
in which prior determinations were evaluated to determine if they were
acceptable for implementation of both the CWA and WC provisions. As a
result, a previously issued certified wetland determination could be
considered insufficient and replaced with a new certified
determination, without regard to whether it had already been issued as
certified (because the determination was conducted after passage of the
1990 Farm Bill). Some aspects of the 1994 MOA were subsequently
rendered obsolete by the 1996 Farm Bill, and it was fully nullified in
2005; however, its effect on wetland determination certification was
long-lasting, particularly the concept of evaluating prior
certifications for quality.
To understand the 1994 MOA's effect on wetland determination
certification, it is necessary to differentiate between determinations
made before and after its effective date of January 6, 1994. For
determinations made after that date, the MOA established which agency
had the lead for wetland identification and enforcement on agricultural
and non-agricultural lands. It also required SCS to work cooperatively
with the Army Corps of Engineers (USACE), EPA, and USFWS to develop or
update wetland mapping conventions. Determinations completed by SCS on
agricultural lands after the effective date were certified for WC
purposes and accepted by EPA and
[[Page 47782]]
USACE for determining CWA Section 404 wetland jurisdiction.
For determinations made before the effective date, the MOA did not
provide specific direction on evaluating prior SCS wetland
delineations. Instead, SCS issued guidance in a March 1994 NFSAM update
(180-V, Third Edition (March 1994)), which stated that the 1990 Farm
Bill:
. . . amended the wetland provisions of [the 1985 Farm Bill] to
include a certification requirement for all wetland determinations.
Since wetland determinations made before the effective date of [the
1990 Farm Bill] did not require certification, a post certification
process must be used.
This ``post-certification process'' required that determinations
completed before November 28, 1990, be ``post-certified'' if the
determination was appealed. If the determination was not appealed, it
could be considered certified only if there was a satisfactory
assessment of wetland inventories (maps of potential wetlands), mapping
conventions, and a sample of determinations in each field office. In
effect, this required an assessment of the reference maps and
procedures used to identify wetlands, as well as a sample of previously
conducted determinations completed under the jurisdiction of each field
office, conducted under the direction of the SCS or NRCS State
Conservationist. For certifications completed after the 1990 Farm Bill
but before the implementation of the 1994 MOA, the evaluation process
was the same except that it added a requirement that the affected
persons had to have been notified of the determination and provided
appeal rights, and it omitted the requirement to assess a sample of
determinations.
To summarize the policy generated by the 1994 MOA that applied
retroactively to determinations issued between November 28, 1990, and
January 6, 1994, determinations were considered certified if they were:
(1) appealed; or (2) conducted according to adequate wetland
inventories and mapping conventions and the affected person had to have
been notified of the determination and provided appeal rights.
Beginning on January 6, 1994 (the effective date of the 1994 MOA), all
new determinations had to be completed according to jointly approved
mapping conventions and were certified for USDA purposes and accepted
for CWA purposes.
Because of the 1994 MOA, NRCS was at times certifying new
determinations that replaced previously issued determinations,
regardless of whether the previous determinations were issued before or
after passage of the 1990 Farm Bill. More importantly, the 1994 MOA
introduced a process that replaced previously certified determinations
based on whether they were acceptable for Section 404 of the CWA.
D. 1995 Moratorium on Wetland Determinations--Congressional Concerns
Implementation of the 1994 MOA generated significant concern in the
agricultural community, particularly regarding SCS (NRCS) unilaterally
changing wetland delineations. In response to these concerns, Senator
Grassley introduced legislation on January 25, 1995, intending to halt
NRCS wetland determinations until the new farm bill was enacted. In
introductory remarks, Senator Grassley described the situation in Iowa
(where new wetland determinations were being issued pursuant to the
1994 MOA), contending that ``farmers can never be certain if their
conduct is allowed under the current regulatory scheme'' (141 Cong.
Rec. S1703 (1995)).
During Daniel Glickman's nomination hearing before Congress, he was
encouraged to place a moratorium on new wetland determinations and was
asked whether it would be prudent to halt the current recertification
of new wetland delineations until the new farm bill was enacted. Daniel
Glickman was sworn in as Secretary of Agriculture on April 5, 1995. The
next day, and in response to these congressional concerns, Secretary
Glickman issued a moratorium on wetland determinations, absent a
specific request from the farmer. On April 13, 1995, NRCS issued
direction to State Conservationists that all previously provided
determinations were ``frozen'' and would only be replaced by new
certified determinations when requested by the person affected by the
existing determination. This guidance provided a form that required a
signature from the affected person who requested the new wetland
determination.
E. 1996 Farm Bill--Further Statutory Clarification
The Federal Agriculture Improvement and Reform Act of 1996 (``the
1996 Farm Bill''; Pub. L. 104-127), signed into law on April 4, 1996,
addressed ongoing concerns regarding wetland determinations by stating
that a final certification remains ``valid and in effect as long as the
area is devoted to an agricultural use or until such time as the person
affected by the certification requests review of the certification . .
.'' (Pub. L. 104-127, 110 Stat. 988). Consistent with this change, the
1996 Farm Bill also removed the 1990 Farm Bill requirement for the
periodic review and update of wetland delineations (which was never
implemented) and added that a certified wetland delineation was not
``subject to a subsequent wetland certification or delineation by the
Secretary, unless requested by the [affected] person . . .'' (Pub. L.
104-127, 110 Stat. 988).
On September 6, 1996, USDA issued regulations that implemented the
1996 Farm Bill changes regarding wetland certification (61 FR 47019-
47038). According to section 12.30(c)(1) of these regulations,
``Certification of a wetland determination means that the wetland
determination is of sufficient quality to make a determination of
ineligibility for program benefits under Sec. 12.4 of this part . .
.'' and it goes on to state, ``All wetland determinations made after
July 3, 1996, will be done on a tract basis and will be considered
certified wetland determinations.'' Section 12.30(c)(6) states that as
long as the affected person is in compliance with the wetland
conservation provisions and the area is used for agricultural purposes,
``a certification made under this section will remain valid and in
effect until such time as the person affected by the certification
requests review of the certification by NRCS.''
Because the September 1996 regulations specifically addressed only
determinations made after July 3, 1996, there has been confusion about
the certification status of determinations made prior to that date.
However, the preamble to the September 1996 rule stated that if NRCS
certified a wetland determination prior to July 3, 1996, the
certification would be valid (61 FR 47025), even though the regulatory
text itself was silent on pre-1996 determinations. The 1996 regulations
referenced the procedures for certification in the 1994 MOA,
acknowledging that the signatory agencies recognized the importance of
providing certainty to the agricultural community regarding the status
of wetland determinations that had not been certified, and stating that
the agencies would coordinate to develop policies and procedures for
evaluating the accuracy of existing non-certified determinations (61 FR
47022).
However, NRCS policy issued in November 1996 did not fully reflect
the principles communicated in the 1996 Farm Bill and the September
1996 USDA regulations. Differing from the 1994 policy initially
implementing the 1994 MOA, the November 1996 policy did not consider
the statutory date of November 28, 1990. Instead, it based
certification status on whether the existing determination met the
criteria
[[Page 47783]]
of the 1994 MOA (and other subjective criteria). If the prior
determination did not meet the MOA's criteria, it was subject to
replacement with a new determination. The 1996 policy required that the
affected person be notified of the proposed changes to their
determination and that NRCS ``encourage the [affected] person to seek a
certified wetland determination'' (NFSAM, 180-V, Third Edition, Amend.
2, Sec. 519.13(d) (Nov. 1996)). To document a request under the 1996
policy, NRCS formally issued a new form, the ``Request for Certified
Wetland Determination/Delineation'' (NRCS-CPA-38).
The November 1996 policy did not explicitly state that if NRCS had
certified a wetland determination prior to July 3, 1996, the
certification remained valid. However, the November 1996 policy did
support the certification status of determinations conducted between
November 28, 1990, and July 3, 1996, if the person affected by the
determination did not submit a NRCS-CPA-38 requesting that the existing
certified determination be changed.
F. Post-1996 Farm Bill Policy
The statement that ``all wetland determinations completed after
July 3, 1996 are considered certified'' first appeared in an August
1998 NRCS policy update (NFSAM, 180-V, Third Edition, Amend. 3, Sec.
514.11(a) (Aug. 1998)). The 1998 policy continued to base pre-1996
certification status on the criteria in the 1994 MOA and continued to
require a signed NRCS-CPA-38 to initiate a new certified wetland
determination. Therefore, the practice in the 1998 policy was a
continuation of the practice established in the September 1996
regulations and subsequent November 1996 NRCS policy, and all
determinations conducted after November 28, 1990, were considered
certified and not subject to replacement without a request from the
person affected by the determination.
In February 2005, USDA and USACE withdrew from the 1994 MOA, citing
(among other things) privacy concerns and the requirement for
interagency coordination when revising wetland determinations. NRCS
revised its policy in August 2006, eliminating the requirement that a
producer sign the NRCS-CPA-38 prior to NRCS conducting a certified
wetland determination; however, a person could still request a wetland
determination by completing AD-1026 or NRCS-CPA-38. Regarding post-1996
determinations, the 2006 policy provided slightly revised wording,
stating that ``[a]ll wetland determinations and delineations completed
after July 3, 1996, are considered as being certified,'' but the policy
continued to base pre-1996 certification status on criteria established
in the 1994 MOA (NFSAM, 180-V, Third Edition, Circular No. 1, Sec.
514.11(a) (Aug. 2006)). However, at this time the policy regarding how
previously completed determinations were provided to affected persons
was changed. The policy established in 1994 said that if persons
affected by the determination had previously appealed the determination
or chose not to exercise their appeal rights, then they did not have a
right to further appeal a determination. The 2006 policy created a
venue for affected persons to appeal determinations, but only when the
affected persons requested change to a determination issued after
November 28, 1990. The 2006 policy stated that the affected person does
not have appeal rights ``unless he/she requests that the decision be
reviewed and is consequently changed'' (NFSAM, 180-V, Third Edition,
Circular No. 1, Sec. 514.51(d) (Aug. 2006)). If the determination was
changed, then the affected person would have the right to appeal. The
2006 policy further bolstered the practice established in the November
1996 policy in which all determinations conducted after November 28,
1990, were considered certified and were not subject to replacement
unless an affected person requested a review of the determination.
In January 2008, NRCS modified its certification policy (NFSAM,
180-V, Fourth Edition, Amend. 4, Sec. 514.1(A)(1) (Jan. 2008)) to
reflect 7 CFR 12.30(c)(1) and to read as follows:
Certification of a wetland determination means that the wetland
determination is of sufficient quality to make a determination of
ineligibility for USDA program benefits. All wetland determinations
made after July 3, 1996, are considered certified determinations.
The 2008 policy removed any reference to evaluating prior
determinations to meet established criteria stating that ``All
certified wetland determinations, conditions, and exemptions remain
valid and in effect as long as the area is devoted to an agricultural
use or until such time as the person affected by the certification
requests review of the certification'' consistent with 16 U.S.C. 3822
(a)(4). For the first time, NRCS policy clearly communicated the 1996
statutory and regulatory provisions regarding duration of certification
(NFSAM, 180-V, Fourth Edition, Amend. 4, Sec. 514.1(C) (Jan. 2008)).
The fifth edition of the NFSAM was issued in January 2010 and
addressed determinations made before July 3, 1996, by adding the
following text to the 2008 policy statement on certification:
``Determinations made prior to July 3, 1996, are considered certified
if they met the procedural (appeal rights) and quality mandates as
provided in 7 CFR part 12'' (NFSAM, 180-V, Fifth Edition, Sec.
514.1(A)(1) (Jan. 2010)). However, no further guidance was provided on
how determinations met the procedural and quality mandates.
In response to a recommendation in a USDA Office of Inspector
General (OIG) audit report, NRCS issued policy in January 2017 that was
later incorporated into December 2018 and August 2020 rules. This
policy confirmed that determinations issued between 1990 and 1996 were
certified if: (1) the person was notified of the certification and
provided appeal rights; and (2) the map document was of sufficient
quality to determine the location of designated wetlands in relation to
other ground features.
IV. Summary of This Rulemaking
This interim rule establishes that all wetland determinations
issued after November 28, 1990, are certified if the person was
notified of the certification and provided appeal rights when the
determination was issued.
A. What This Rule Means
Farmers, ranchers, forest landowners, and land managers must comply
with the wetland conservation provisions of the 1985 Farm Bill to
maintain their eligibility for USDA program benefits. NRCS helps
producers maintain their eligibility by providing certified wetland
determinations. When determinations indicate that wetlands are present,
producers have the option to tailor their activities to avoid wetland
conversion so that they can continue to receive USDA program benefits,
or they may receive a statutory exemption (such as mitigation for
wetland conversion impacts) to maintain eligibility for USDA programs.
If the wetland determination does not indicate wetlands are present,
the producer can proceed with their activities without risk to their
USDA program eligibility.
As discussed in this interim rule, there has been confusion on the
status of wetland determinations issued between November 28, 1990, and
July 3, 1996; however, the statutory basis for the certification status
of these determinations is clear. If a determination is certified, a
producer can immediately act based on the certification and does not
have to
[[Page 47784]]
undergo the administrative and technical wetland determination process
of obtaining a new determination. If a producer disagrees with a
certified wetland determination, the producer can ask for the existing
certification to be reviewed. In addition, according to the current
regulation in 7 CFR part 12.30(c)(6), which is unaffected by this
rulemaking, a producer may request review of a certified wetland
determination if a natural event has altered the topography or
hydrology of the land, or if NRCS agrees that an error exists.
This interim rule provides certainty to producers who have a
certified determination issued any time between November 28, 1990, and
July 3, 1996. By clarifying the regulation to ensure conformance with
the statutory provisions, administrative burden is reduced for both the
producer and NRCS by avoiding the additional work created by new
wetland determinations that would unnecessarily replace issued
determinations that are legally certified. Current regulations provide
the opportunity for a producer to request review of a certification if
the producer disagrees with their existing certified determination.
B. Change in Policy Reflected in This Rule
Prior to NRCS's January 2017 guidance, its policy on wetland
determination certification was contained in the 2010 NFSAM, 180-V,
Fifth Edition, Sec. 514.1(A)(1) (Jan. 2010):
Certification of a wetland determination means that the wetland
determination is of sufficient quality to make a determination of
ineligibility for USDA program benefits. All wetland determinations
made after July 3, 1996, are considered certified determinations (7
CFR 12.30(c)(1)). Determinations made prior to July 3, 1996, are
considered certified if they met the procedural (appeal rights) and
quality mandates as provided in 7 CFR 12.
Implementation of this policy was inconsistent, and consequently,
treatment of pre-1996 wetland determinations was inconsistent, which
was captured in the findings of the previously mentioned 2017 OIG
report. OIG observed that NRCS was rejecting most pre-1996
determinations as certified, and then later began accepting them as
certified beginning in 2013.
This inconsistent treatment of pre-1996 determinations can be
attributed to a lack of definitive criteria in the 2010 policy provided
above. When considering the status of a pre-1996 determination, NRCS
had to determine if it ``met the procedural (appeal rights) and quality
mandates as provided in 7 CFR 12'' (NFSAM,180-V, Fifth Edition, Sec.
514.1(A)(1) (Jan. 2010)). The procedural requirement was clearly met if
there was evidence that appeal rights were provided with the
determination. However, applying the quality mandate was more
difficult. With no criteria provided in the policy, staff had to
consider the ``quality mandates as provided in 7 CFR 12'' for
additional criteria. Referring to the CFR, staff would only discover
that ``Certification of a wetland determination means that the wetland
determination is of sufficient quality to make a determination of
ineligibility for program benefits'' (61 FR 47036). Consequently, to
evaluate a pre-1996 determination according to the quality mandate,
staff needed to decide if the certification was ``of sufficient quality
to make a determination of ineligibility for program benefits'' without
any additional guidance on what qualified as ``sufficient quality.''
This interim rule does not constitute a change in the certification
status of pre-1996 determinations as established in the regulatory
preamble to the 1996 text, which stated that ``If NRCS certified a
wetland determination prior to July 3, 1996, the certification will
remain valid'' (61 FR 47025). However, this interim rule changes how
these determinations will be treated. Previously, discretion was left
to NRCS to decide if a determination conducted between November 28,
1990, and July 3, 1996, was certified; however, this rule confirms that
those determinations are certified if the person affected by the
determination was notified of the certification and provided appeal
rights.
This interim rule reflects the statutory language of the 1990 Farm
Bill which required that a determination be certified as sufficient for
the purpose of making a determination of ineligibility for program
benefits, at the time it was issued, and the statutory language of the
1996 Farm Bill which requires that such determinations remain valid as
long as the area is devoted to an agricultural use or until such time
as the person affected by the certification requests review. The change
to adhere to the statutory text provides certainty to producers so they
can rely on their existing certified determination while continuing to
manage their agricultural operations. Clarity is also provided on how
to implement these statutory provisions, removing the prior
subjectivity left in interpreting the ``quality'' mandate.
C. Justification for the Interim Rule
The certification status of determinations issued after November
28, 1990, is based on legislative and regulatory history:
Regulations and policy were put in place following the
1990 Farm Bill to certify determinations, and Congress intended the
certification process to provide farmers with certainty about whether
their lands were considered wetlands;
Congress raised concerns regarding the constant replacing
of previous determinations under the 1994 MOA, as changing
determinations undermined the reliance of producers on previous
certified determinations; and
The 1996 Farm Bill addressed these concerns by clarifying
that a final certification remains ``valid and in effect as long as the
area is devoted to an agricultural use or until such time as the person
affected by the certification requests review of the certification by
the Secretary.'' (Pub. L. 104-127, 110 Stat. 988).
In the preamble to the regulations implementing the 1996 Farm Bill,
USDA explained that a certified wetland determination made prior to
July 3, 1996, remained valid.
Despite the preamble's clarity, some confusion remained because the
regulation itself only addressed determinations conducted after July 3,
1996. In clarifying the status of determinations made prior to July 3,
1996, NRCS is adhering to the statutory direction provided by Congress
while taking into consideration the reliance interest of producers by
confirming the status of their wetland determinations. NRCS has no
independent authority to question prior certified wetland
determinations of land in agricultural use. Only a person affected by
the prior determination may request a review of their determination.
V. Regulatory Certifications
A. Executive Orders 12866, 13563, and 14192
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review,''
direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasized the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. Executive Order 14192,
``Unleashing Prosperity Through Deregulation,'' announced the
Administration policy to significantly reduce the private expenditures
[[Page 47785]]
required to comply with Federal regulations to secure America's
economic prosperity and national security and the highest possible
quality of life for each citizen and to alleviate unnecessary
regulatory burdens placed on the American people. In line with the
Executive Order requirements, the Agency chose this regulatory
approach, which provides clarity with respect to the certification
status of wetland determinations issued between November 28, 1990, and
July 3, 1996, to minimize burden on American producers. This rule is
not an Executive Order 14192 regulatory action because it does not
impose any more than de minimis regulatory costs.
The Office of Management and Budget (OMB) designated this rule as
not significant under Executive Order 12866.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because USDA is not required by 5 U.S.C. 553 or any other provisions of
law to publish a notice of proposed rulemaking with respect to the
subject matter of this rule.
C. Environmental Review
As previously mentioned, the 1996 Farm Bill clarified that a final
certification remains ``valid and in effect as long as the area is
devoted to an agricultural use or until such time as the person
affected by the certification requests review of the certification by
the Secretary.'' (16 U.S.C. 3822(a)(4)). Because this rule implements
that clear congressional direction on the status and treatment of
previously conducted and issued wetland determinations, it is not
necessary to take any action other than what is set forth in this rule
to confirm the certification of the wetland determinations issued as
certified after November 28, 1990. According to USDA regulations
implementing the National Environmental Policy Act (NEPA, 42 U.S.C.
4321-4347), NEPA does not apply in circumstances where Congress has
prescribed, by statute, decisional criteria with sufficient
completeness and precision such that a Federal agency retains no
residual discretion to alter its action based on the consideration of
environmental factors (7 CFR part 1b.2(e)(4)). Similarly, the
Endangered Species Act applies only to actions in which the agency has
discretionary Federal involvement or control (50 CFR 402.03).
Therefore, USDA will not prepare an environmental assessment or
environmental impact statement for this action, nor will it undergo
consultation under Section 7 of the Endangered Species Act.
D. Executive Order 13175
This rule has been reviewed in accordance with Executive Order
13175, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 requires Federal agencies to
consult and coordinate with Tribes on a Government-to-Government basis
on policies that have Tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
USDA has assessed the impact of this rule on Indian Tribes and
determined that this rule does not, to our knowledge, have Tribal
implications that required Tribal consultation at this time. If a Tribe
requests consultation in the future, NRCS's Federal Preservation
Officer will work with the Office of Tribal Relations, as needed, to
ensure meaningful consultation is provided.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including cost benefit analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
rule contains no Federal mandates, as defined in Title II of UMRA, for
State, local, and Tribal governments or the private sector. Therefore,
this rule is not subject to the requirements of sections 202 and 205 of
UMRA.
F. Paperwork Reduction Act, Congressional Review Act, and Effective
Date
Section 1246 of the Food Security Act of 1985 (16 U.S.C. 3846)
provides that regulations issued under Title XII of such Act, including
those at 7 CFR part 12, are exempt from the requirements of the
Paperwork Reduction Act (44 U.S.C. Chapter 35) and are to be published
as interim rules that are effective upon publication with an
opportunity for notice and comment. The section also requires the
Secretary to use the authority at 5 U.S.C. 808 regarding the effective
date of the rule for purposes of the Congressional Review Act (CRA).
Pursuant to 5 U.S.C. 808(2), the Secretary has determined that there is
good cause to waive the 60-day delayed effective date otherwise
required by the CRA because the rule implements a statutory mandate
that the regulations be effective immediately upon publication.
Delaying effectiveness would leave producers without clarity on
certification status, undermining the reliance interests of
agricultural producers and delaying critical program administration.
Making this rule effective immediately is therefore necessary,
reasonable, and not contrary to the public interest.
G. E-Government Act Compliance
USDA is committed to complying with the E-Government Act of 2002,
to promote the use of the internet and other information technologies
to provide increased opportunities for citizen access to Government
information and services, and for other purposes.
Federal Assistance Programs
This rule has a potential impact on participants for many programs
listed in the Catalog of Federal Domestic Assistance in the Agency
Program Index under the Department of Agriculture.
List of Subjects in 7 CFR Part 12
Administrative practice and procedure, Coastal zone, Crop
insurance, Flood plains, Loan programs--agriculture, Price support
programs, Reporting and recordkeeping requirements, Soil conservation.
For the reasons stated in the preamble, USDA amends 7 CFR part 12
as follows:
PART 12--HIGHLY ERODIBLE LAND CONSERVATION AND WETLAND CONSERVATION
0
1. The authority citation for part 12 continues to read as follows:
Authority: 16 U.S.C. 3801, 3811-12, 3812a, 3813-3814, and 3821-
3824.
Subpart C--Wetland Conservation
0
2. Amend Sec. 12.30 by revising paragraph (c)(1) to read as follows:
Sec. 12.30 NRCS responsibilities regarding wetlands.
* * * * *
[[Page 47786]]
(c) Certification of wetland determinations and wetland
delineations. (1) Certification of a wetland determination means that
the wetland determination is sufficient for the purpose of making a
determination of ineligibility for program benefits under Sec. 12.4.
NRCS may certify a wetland determination without making a field
investigation. NRCS must notify the person affected by the
certification and provide an opportunity to appeal the determination
prior to the certification becoming final. 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.
* * * * *
Stephen Vaden,
Deputy Secretary, United States Department of Agriculture.
[FR Doc. 2026-15284 Filed 7-28-26; 8:45 am]
BILLING CODE 3410-16-P