UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
NATIONAL WILDLIFE FEDERATION,
Plaintiff,
v. Civil Action No. 19-cv-2416 (TSC)
MATTHEW LOHR; SONNY PERDUE,
Defendants.
MEMORANDUM OPINION
Plaintiff National Wildlife Federation (“NWF”) challenges a 2020 Final Rule from the
Natural Resource Conservation Service (“NRCS”) regarding certification of maps delineating
wetlands. NRCS is charged with carrying out a wetland conservation program that incentivizes
farmers not to use wetlands for agricultural purposes by tying eligibility for certain Department
of Agriculture benefits to their preservation of certified wetlands. Congress authorized NRCS to
certify wetlands in 1990 on the premise that those certifications would be updated over time, but
in 1996, Congress amended the statute and NRCS issued a regulation providing that all wetlands
so designated after the regulation went into effect would be considered “certified” going forward.
This left NRCS to decide whether wetlands it determined between 1990 and 1996 should be
considered “certified” going forward on a case-by-case basis.
NWF claims that from 1996 to 2013, NRCS decided whether pre–1996 maps delineating
wetlands should be considered “certified” wetland determinations based on the map’s accuracy,
but has since considered those determinations certified if the map is legible, rather than accurate,
as formalized in its 2020 Final Rule. NRCS, however, claims that the Final Rule clarified, rather
Page 1 of 22 than changed, its policy regarding whether pre–1996 wetland determinations should be
considered “certified.”
In response to the 2020 Final Rule, Plaintiff filed this action, claiming that NRCS
changed its policy regarding pre–1996 wetland certifications without exercising reasoned
decision-making in violation of the Administrative Procedure Act (“APA”), without consulting
with Fish and Wildlife Service (“FWS”) in violation of the Endangered Species Act (“ESA”),
and without taking a hard look at the environmental impacts of its action in violation of the
National Environmental Policy Act (“NEPA”). Defendants, in turn, contend that Plaintiff lacks
standing, and the 2020 Final Rule complies with the APA, the ESA, and the NEPA. Plaintiff
moved for summary judgment on December 1, 2020, ECF No. 27, and Defendants cross-moved
on January 29, 2021, ECF No. 28.
Having considered the parties’ briefing and the record, the court will GRANT Plaintiff’s
Motion for Summary Judgment and DENY Defendants’ Cross Motion for Summary Judgment.
The court concludes that Plaintiff has standing, and that the 2020 Final Rule violates the APA
because NRCS changed its policy regarding the certification of pre–1996 wetland determinations
without providing a reasoned explanation. 1
I. BACKGROUND
A. Legal and Factual Background
i. The wetland conservation program, the statutory scheme, and NRCS regulations
In 1985, Congress initiated a conservation program aimed at protecting agricultural
wetlands. See Food Security Act of 1985, Pub. L. No. 99-198, 99 Stat. 1354 (1985). The
1 Because the court holds that the 2020 Final Rule violates the APA, it does not reach Plaintiff’s alternative arguments that the 2020 Final Rule violates the ESA and the NEPA.
Page 2 of 22 program is designed to preserve agricultural wetlands by eliminating certain agricultural benefits
for those who use wetlands for agricultural purposes or who convert those wetlands. See 16
U.S.C. § 3821; 7 C.F.R. § 12.1. “The term ‘converted wetland’ means wetland that has been
drained, dredged, filled, leveled, or otherwise manipulated . . . for the purpose or to have the
effect of making the production of an agricultural commodity possible.” AR000010. NRCS—
previously known as the Soil Conservation Service—is the component of the Department of
Agriculture tasked with administering the wetland conservation program. See AR010520.
Congress amended the 1985 Food Security Act in the 1990 and 1996 Farm Bills. In the
1990 Farm Bill, Congress required NRCS to “delineate wetlands on wetland delineation maps,”
“certify each such map as sufficient for the purpose of making determinations of ineligibility for
program benefits,” and periodically “review and update” the certifications. Food, Agriculture,
Conservation, and Trade Act of 1990, Pub. L. No. 101-624, 104 Stat. 3359, 3573 (1990). This
certification process was intended “to provide farmers with certainty as to which of their lands
are to be considered wetlands” for benefits purposes. AR000176. In response, NRCS
promulgated regulations in 1991 specifying that wetland determinations “made prior to
November 28, 1990” would be certified “if they were made according to” a set of certification
requirements. AR000231–32.
The four agencies with jurisdiction over wetlands—the Department of Agriculture, the
Environmental Protection Agency, the Department of the Interior, and the Department of the
Army—entered into a Memorandum of Agreement (“MOA”) in 1994 to set uniform mapping
conventions to be used in implementing the Food Security Act’s and the Clean Water Act’s
wetland preservation requirements. AR000376. With respect to pre–1990 wetland
determinations, the MOA provided that NRCS would review and certify the determinations
Page 3 of 22 using the agreed-upon mapping conventions. AR000381. But for determinations issued between
1990 and 1994, NRCS was to “establish priorities to certify [the] wetland delineations” in
compliance with the MOA. Id. The MOA also provided that post–1994 wetland certifications
would be updated on a five-year cycle. AR000378.
Subsequently, in the 1996 Farm Bill, Congress directed NRCS to “delineate, determine,
and certify all wetlands located on subject land on a farm.” Federal Agriculture Improvement
and Reform Act of 1996, Pub. L. No. 104-127, 110 Stat. 888, 987 (1996). The statute also was
amended to provide that certifications “shall not be subject to a subsequent wetland certification”
to prevent prejudice to farmers, who are likely to rely on those certifications in making business
decisions. Id. at 988.
In implementing the 1996 Farm Bill, NRCS passed regulations providing that “[a]ll
wetland determinations made after July 3, 1996, . . . will be considered certified wetland
determinations,” AR000501, and “[i]f NRCS certified a wetland determination prior to July 3,
1996, the certification will remain valid,” AR 000490. The regulations further noted that NRCS
would continue to evaluate “existing wetland determinations” that had not been certified under
the MOA. Id.
NRCS’s 1997 quality assessment and other contemporaneous reports found that most
pre–1996 wetland determinations “fail[ed] to meet the current quality criteria” necessary to be
treated as certified. AR000551; accord AR000540; AR000513–23; AR000542–43. Thus, in
practice, NRCS only considered pre–1996 wetland determinations to be certified if they met
quality mandates and farmers had been informed of their appeal rights. AR001345.
Page 4 of 22 ii. Post–2013 practice of certifying pre–1996 wetland determinations
In the years leading up to 2013, NRCS experienced a surge in requests for certified
wetland determinations from the Prairie Pothole region because of increased demand for corn
and soybeans. AR000950. State-level NRCS offices, however, were not taking a uniform
approach to these requests regarding pre–1996 certifications. AR001359. Accordingly, in early
2013, NRCS proposed making “procedural changes and clarifications” to its implementation of
the wetland conservation program. AR000952.
A Department of Agriculture’s Inspector General’s report (“OIG Report”) indicated that,
in 2013, NRCS began treating pre–1996 determinations as certified so long as they included
legible maps and informed farmers of their appeal rights. AR001345–48. The OIG Report
concluded that NRCS made this change to clear a backlog by focusing on the legibility of the
pre–1996 maps instead of accuracy or compliance with quality criteria. AR001342–43. When
the OIG Report was issued in 2017, it documented that NRCS’s change in practice had already
caused an increase in wetland destruction. AR001347. NRCS disputed OIG’s conclusion that it
changed its policy, explaining that OIG misconstrued its efforts to clarify the policy, incorrectly
interpreted prior studies of wetland determinations, and incorrectly characterized NRCS’s
motivation to clear a backlog of requests for wetland determinations. AR001355–60.
The change identified in the OIG Report was implemented in four steps. First, NRCS
issued a decision memorandum in 2013 instructing state NRCS offices to implement this new
policy. AR000953–56. The memorandum provided that state offices in the Prairie Pothole
region should accept pre–1996 determinations as certified so long as “documentation exist[ed] to
show that [farmers] were provided appeal rights.” AR000955. According to the OIG Report,
state agency officials were directed to “go forward with the proposed change of accepting [pre–
Page 5 of 22 1996] wetland determinations . . . while waiting for” written and formal guidance on the issue.
AR001343–44. Second, in 2017 NRCS updated its manual to expand the policy “clarifi[cation]”
nationwide. AR001375. This amendment stated that NRCS may certify pre–1996 wetland
determinations so long as the map is “legible.” AR001363. Third, in 2018 NRCS issued an
Interim Rule formalizing this legibility policy but noting that it was a clarification, rather than a
change. AR001426–27. The Interim Rule provided that pre–1996 wetland determinations were
deemed certified if they were issued on Form CPA-026, which provided appeal rights; the farmer
had been notified of the determination; and “the map document was of sufficient quality to
determine ineligibility for program benefits.” AR001427–28. The rule, however, defined
“sufficient quality” as the map being “legible.” AR001427. Interested parties, including
Plaintiff, submitted comments raising concerns about the change in policy. See AR001710–45;
AR001812; AR009319–20. NRCS prepared an Environmental Assessment under the NEPA to
evaluate the Interim Rule’s environmental effects, and found that it would not have significant
environmental effects. AR001401–19.
Finally, in 2020 NRCS issued a Final Rule codifying this policy change with only minor
changes. The Final Rule again stated that all determinations conducted between 1990 and 1996
are considered certified so long as they are legible. AR012005. In the preamble, NRCS stated
that the 2020 Final Rule was a “codification and clarification of existing practice rather than a
substantive change of overall regulatory framework or policy.” AR011993. It further noted that
NRCS disagreed with the OIG Report. AR12000. NRCS did not find it necessary to consult
with FWS under the ESA, see AR011996–97, or issue an updated Environmental Impact
Statement under the NEPA in connection with the Final Rule, but it did issue a new finding of no
significant impact under the NEPA, AR012006–10.
Page 6 of 22 B. Procedural Background
Plaintiff initially brought this lawsuit on August 9, 2019, following the NRCS’s Interim
Rule, naming as Defendants Matthew Lohr, Chief of the NRCS, and Sonny Perdue, Secretary of
the Department of Agriculture. See Compl., ECF No. 1. Once Defendants informed the court
that NRCS planned to issue a Final Rule on the matter, the court granted a stay. See Mot. to Stay
Briefing, ECF No. 19; Min. Order, July 15, 2020. The stay was lifted when the Final Rule was
issued. See Min. Order, July 15, 2020; Am. Min. Order, Oct. 5, 2020.
Plaintiff subsequently filed an Amended Complaint challenging the 2020 Final Rule as
violating the APA, the ESA, and the NEPA. Am. Compl., ECF No. 24 at 61–66. Plaintiff seeks
declaratory and injunctive relief prohibiting NRCS from “certifying pre-1996 wetland
determinations without rigorous evidence of their accuracy,” requiring NRCS “to comply with
the ESA by a date certain on a schedule set by the Court and to avoid or remediate harm to listed
species until such time as consultation is complete” and to ensure that precautionary measures
have been implemented, along with attorneys’ fees and costs. Id. at 66–68.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a), which typically supplies the legal standard on
summary judgment, does not apply to motions for summary judgment seeking APA review
“because of the court’s limited role in reviewing the administrative record.” Coe v. McHugh,
968 F. Supp. 2d 237, 239 (D.D.C. 2013). Instead, the court must decide as a matter of law
“whether the agency action is supported by the administrative record and otherwise consistent
with the APA standard of review.” Id. at 240. The APA standard of review similarly applies to
the ESA and NEPA claims. Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 686 (D.C.
Cir. 1982) (ESA); Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 507 (D.C.
Cir. 2010) (NEPA). Page 7 of 22 This court is “highly deferential” to agency action, Envt’l. Def. Fund, Inc. v. Costle, 657
F.2d 275, 283 (D.C. Cir. 1981), only setting it aside if the action is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2). The court may
not “substitute its judgment for that of the agency,” but instead must consider whether “the
agency has relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“Motor Vehicle Mfrs.”). The plaintiff
bears the burden of establishing that the agency’s action is invalid. Fulbright v. McHugh, 67
F. Supp. 3d at 81, 89 (D.D.C. 2014).
III. ANALYSIS
A. Article III Standing
It is an “essential and unchanging part of the case-or-controversy requirement” that a
plaintiff must establish Article III standing to sue in federal court. Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992). To establish standing at summary judgment, “a plaintiff must show
(i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be
redressed by judicial relief.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021); accord
Me. Lobstermen’s Ass’n v. Nat’l Marine Fisheries Serv., 70 F.4th 582, 592 (D.C. Cir. 2023).
The associational standing doctrine allows environmental organizations to establish
standing by demonstrating that “(a) its members [or any one of them] would otherwise have
standing to sue in their own right; (b) the interests [the entity] seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the Page 8 of 22 participation of individual members in the lawsuit.” United Food & Com. Workers Union Loc.
751 v. Brown Grp., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977)).
Defendants do not dispute the second and third elements of associational standing, only
the first—whether any of Plaintiff’s individual members would have standing to sue in their own
right. But, as explained below, three of Plaintiff’s members have standing. Each has aesthetic
and recreational interests in the wetlands and wetland-dependent-wildlife in the Prairie Pothole
region; harm to those interests is traceable to the procedural deficiencies Plaintiff alleges in the
NRCS’s change in policy regarding wetland determinations; and a favorable decision from this
court is likely to redress Plaintiff’s members’ injuries because NRCS would revisit the change in
agency policy with additional procedural safeguards and could come to a different conclusion.
That is all Article III requires.
i. Injury in fact
Defendants do not contest Plaintiff’s injury in fact. See Defs.’ Reply to Opp’n to Mot.
for Summ. J., ECF No. 33 at 2 (“Defs.’ Reply”). This court, however, has “an independent
obligation to ensure [its] jurisdiction.” Muthana v. Pompeo, 985 F.3d 893, 901 (D.C. Cir. 2021).
“Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not
a freewheeling power to hold defendants accountable for legal infractions.” TransUnion LLC,
141 S. Ct. at 2205. “Only those plaintiffs who have been concretely harmed by a defendant’s
statutory violation may sue that private defendant over that violation in federal court.” Id.
In the environmental context, that means that care and concern for the aesthetics or the
well-being of the environment alone does not suffice to establish injury in fact. See id.
Typically, a plaintiff challenging the effect of a ruling or decision on the environment alleges
Page 9 of 22 injury in fact based on their “geographic proximity to the action challenged.” City of Olmsted
Falls v. FAA, 292 F.3d 261, 267 (D.C. Cir. 2002). In other words, plaintiffs may establish
standing to challenge environmental harms by alleging “that they use the affected area and are
persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the
challenged activity.” Friends of the Earth, Inc. v. Laidlaw Env’t. Servs., 528 U.S. 167, 183
(2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); accord Housatonic River
Initiative v. U.S. EPA, 75 F.4th 248, 265 (1st Cir. 2023) (post–TransUnion LLC).
The D.C. Circuit has found an injury in fact in several cases where plaintiffs have
aesthetic and recreational interests in specific areas of land or species that may be harmed by
agency action. E.g., Am. Fuel & Petrochemical Mfrs. v. EPA, 937 F.3d 559, 593 (D.C. Cir.
2019) (aesthetic and recreational interest in observing whooping cranes); Ctr. for Biological
Diversity v. EPA, 861 F.3d 174, 183 (D.C. Cir. 2017) (“recreational, scientific, aesthetic,
educational, moral, spiritual and conservation interests” in “observing the Valley Elderberry
Longhorn Beetle in its natural California habitat”); WildEarth Guardians v. Jewell, 738 F.3d
298, 305–06 (D.C. Cir. 2013) (members had aesthetic interests in the land surrounding West
Antelope II tracts, where an agency had authorized mining that would increase “local air, water
and land pollution”). So too have other appellate courts. See, e.g., Idaho Conservation League
v. Bonneville Power Admin., 83 F.4th 1182, 1188 (9th Cir. 2023) (“Petitioners have undertaken
efforts to preserve the populations of salmon and steelhead in the Basin, and their members
assert individual aesthetic and other interests in the fish populations.”). This case is no different.
Plaintiff identifies three individual members with injuries in fact: William Antonides,
Michael McEnroe, and Allyn Sapa. Antonides declares that he resides in the “heart of the
‘Prairie Potholes’ region—an area marked by shallow depressions left behind by receding
Page 10 of 22 glaciers that today form an elaborate network of wetlands” and the destruction of wetlands has
impaired his use and enjoyment of his property. Antonides Decl., ECF No. 27-4 ¶¶ 2, 12. He
further avers that he “derive[s] deep personal gratification from viewing these areas and teaching
[his] children and grandchildren about the flora and fauna found” there, id. ¶ 2, goes hunting
multiple times per year in the area, id. ¶ 8, and enjoys birdwatching in the “unique ecology” of
the wetlands, id. ¶¶ 9–11. McEnroe declares that he hunts waterfowl, such as ducks, regularly, is
an “avid birdwatcher” and wildlife photographer, and enjoys seeing “the numerous bird species
that rely on wetlands in the Prairie Pothole region.” McEnroe Decl., ECF No. 31-2 ¶¶ 6–7.
Finally, Sapa declares he has a “strong personal . . . interest in” the public and private wetlands
in North Dakota and “especially the wildlife that depends on wetlands for habitat” because he
regularly hunts duck and geese and is a “recreational birdwatcher.” Sapa Decl., ECF No. 31-1
¶ 5. Antonides, McEnroe, and Sapa have sufficiently stated injuries, and therefore Plaintiff has
an injury in fact.
ii. Traceability
Because Plaintiff alleges “archetypal procedural injur[ies],” the second element of
standing—known as traceability or causation—bears particular importance. Am. Fuel &
Petrochemical Mfrs., 937 F.3d at 592. In the procedural injury context, a plaintiff “need not
show that a harm to a member ‘has in fact resulted from the [agency’s] procedural failures,’” but
rather that “there is a ‘substantial probability’” that the challenged agency action caused the
plaintiff’s injury. Id. (citation omitted). This inquiry requires two causal links: one connecting
the procedural deficiency to the substantive agency action, and another connecting that
substantive agency action to the plaintiff’s injury. Ctr. for Biological Diversity, 861 F.3d at 184.
Page 11 of 22 Regarding the first link, “[a]ll that is necessary is to show that the procedural step was connected
to the substantive result.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (citation omitted).
In cases where the alleged injury flows from independent actions of third parties, courts
“require only a showing that ‘the agency action is at least a substantial factor motivating the third
parties’ action.’” Tozzi v. U.S. Dep’t of Health and Hum. Servs., 271 F.3d 301, 308 (D.C. Cir.
2001) (citation omitted). Indeed, the Supreme Court recently found standing in a civil rights
case involving an independent actor, holding that the “practical consequence” of a court ordering
a “change in legal status” “‘would amount to a significant increase in the likelihood’” that the
independent actor would make the choice that would allow the plaintiff to “‘obtain relief that
directly redresses the injury suffered.’” Reed v. Goertz, 589 U.S. 230, 234 (2023) (quoting Utah
v. Evans, 536 U.S. 452, 464 (2002)).
Plaintiff has shown causation because (1) the procedural deficiencies Plaintiff alleges are
connected to the agency action it challenges, and (2) the challenged action is linked to Plaintiff’s
member’s injuries. First, Plaintiff connects the substantive action it challenges—NRCS’s change
in its “policies implementing the wetland conservation program”—to the procedural deficiencies
it identifies: that in changing its policies, NRCS failed to “acknowledge[e] that it has altered its
approach or provid[e] any reasoned basis for this new approach,” as well as “evaluat[e] its
impacts on listed species or the environment more broadly.” Pl.’s Mem. in Supp. of Mot. for
Summ. J., ECF No. 27-1 at 3 (“Pl.’s Mot.”). Plaintiff’s arguments are supported by the audit that
resulted in the OIG Report, which concluded that there was an undocumented change in agency
policy that “replaced its backlog of pending [wetlands] determinations with inaccurate
determinations.” See AR001336–52.
Page 12 of 22 Second, the record supports a significant likelihood that farmers would not convert
wetlands if the determinations were revised. For example, Sapa declared that “[f]ederal
incentives to conserve wetlands are critically important, due to the fact that farmers do not
otherwise receive direct financial benefits from wetlands on their private lands, and instead
otherwise have an incentive to fill, drain, or destroy wetlands to maximize the efficient
production of crops on private lands.” Sapa Decl. ¶ 10. Indeed, the Farm Bureau has made a
similar point: “the conservation compliance programs operate fundamentally as regulatory
programs,” because farmers “stand to lose vital payments, loans, and crop insurance benefits in
the event of adverse determinations.” AR001812. Plaintiff has therefore established a
“significant likelihood” that farmers would choose to act in accordance with the economic
incentives of agency action.
Defendants press several arguments to the contrary. First, they contend that Plaintiff fails
to “tie its interest in wildlife to a specific place used by the plaintiff and . . . show that the policy
it challenges is the cause of the negative impacts in that place.” Defs.’ Reply at 2; accord Mem.
in Opp’n to Mot. for Summ. J., ECF No. 29 at 24 (“Defs.’ Opp’n”). Defendants argue that
Plaintiff’s members’ declarations must “identify . . . specific wetland areas where drainage or fill
of wetlands would harm their interests” and “demonstrate that the draining or filling of those
specific areas is caused by” the agency action “they challenge.” Defs.’ Reply at 3. But
Defendants’ argument is premised on a stricter standard than Article III requires. Plaintiff’s
members need not tie their aesthetic and recreational interests in wetlands and wetland-
dependent wildlife to any specific wetland, because Plaintiff does not challenge an agency action
affecting any specific wetland. Contra Ctr. for Biological Diversity v. U.S. Dep’t of the Interior,
No. 22-cv-1716, 2023 WL 7182041, at *3–4 (D.D.C. Nov. 1, 2023) (requiring the plaintiffs to tie
Page 13 of 22 their injuries to specific drilling permits because the plaintiffs challenged individual drilling
approvals). Plaintiff challenges a change in agency policy regarding wetland determinations, and
Plaintiff’s members declare aesthetic and recreational interests in the Prairie Pothole region,
which contains an “elaborate network of wetlands.” Antonides Decl. ¶ 2; accord McEnroe Decl.
¶ 9; Sapa Decl. ¶ 7. Plaintiff “need not show that harm to a member ‘has in fact resulted from’”
the change in agency policy.
Defendants contend that Public Employees for Environmental Responsibility v.
Bernhardt, No. 18-cv-1547, 2020 WL 601783 (D.D.C. Feb. 7, 2020), supports their argument.
See Defs.’ Reply at 3. In Bernhardt, the court concluded that plaintiffs’ members’ declarations
were filled with conclusory assertions that removing species of black bears from the endangered
species list would make it more difficult for plaintiffs’ members to view the bears. 2020 WL
601783, at *5–6. Plaintiffs did not include any facts to support the causal links, merely asserting
them to be true, which was insufficient to demonstrate standing at the summary judgment stage.
See id. Not so here.
Second, Defendants contend that there are “numerous reasons unrelated to the policy at
issue that wetlands could be filled or drained,” so the court should not “assume” causation.
Defs.’ Reply at 4. Defendants note, for example, that the areas may have been drained or filled
because they were determined to be “prior converted” wetlands that are exempt from the
prohibition on drainage; because they were authorized by Corps of Engineers permits; because
they were artificially created wetlands; or because the owner opted to drain them despite the risk
of losing benefits. Defs.’ Opp’n at 25. Even so, Plaintiff’s allegations suffice to show a
“substantial likelihood” that farmers would drain fewer wetlands throughout the Prairie Pothole
region if they faced losing federal benefits for doing so.
Page 14 of 22 Third, Defendants argue that the OIG Report does not support traceability because it is
not clear if the wetlands reviewed correspond with the wetlands Plaintiff’s members use, and the
report relied on a “narrow, non-statistically drawn sample.” Defs.’ Reply at 4–5. But
Defendants “slice[] the salami too thin.” WildEarth Guardians, 738 F.3d at 307. The OIG audit
covered the Prairie Pothole region, AR001351—the same region Plaintiff’s members use and
enjoy. The Report also notes that the audit was performed “with generally accepted government
auditing standards.” AR001352. Moreover, the OIG Report is just one ingredient in Plaintiff’s
traceability argument.
Finally, Defendants contend that the causal chain is speculative because it requires the
court to assume that farmers faced with revised determinations would decide not to convert those
wetlands, citing Clapper v. Amnesty International USA, 568 U.S. 398, 413 (2013). Defs.’ Opp’n
at 27. Clapper does not prohibit a traceability finding whenever redress depends on an
independent actor’s choices. Rather, in Clapper, plaintiffs’ standing argument rested on a
“highly attenuated chain of possibilities” that required executive agencies to make a series of
decisions to set new agendas, the Foreign Intelligence Surveillance Court to find the agencies’
methods lawful, and the agencies to succeed in carrying out those agendas. 568 U.S. at 410–13.
The combination of these several independent actions created the traceability problem; not the
mere fact that an independent actor was involved. This case is quite different, as connecting the
injury to the redress requires only a substantial likelihood that one independent actor—the
farmers—will act in the way the government incentivizes them to. Because the causal chain is
far less attenuated than in Clapper, Plaintiff has established causation.
Page 15 of 22 iii. Redressabilty
The final standing requirement—redressability—is “relaxed” in cases involving
procedural injuries. Ctr. for Biological Diversity, 861 F.3d at 185. A plaintiff need only show
that the agency revisiting its action “could” lead to “a different conclusion.” Id.; accord
WildEarth Guardians, 738 F.3d at 306. The D.C. Circuit has found this requirement met where
“[t]here ‘remains at least the possibility that the [agency] could set a different standard[].’” Am.
Fuel & Petrochemical Mfrs., 937 F.3d at 595 (citation omitted). Plaintiff’s members’ injuries
are redressable because, by revisiting the change in agency policy and rectifying the alleged
procedural deficiencies in its decision-making, NRCS could choose to return to its pre–2013
policy. See Pl.’s Mem. in Opp’n to Cross Mot. for Summ. J., ECF No. 31 at 9.
Defendants contend that “Plaintiff requires the Court to assume that if NRCS did revisit
the 1990-1996 determination, the agency would find more wetlands” to be certified, when, in
reality, “revisiting 1990-1996 determinations would likely result in wetland decreases in some
situations, increases in others, and, in some, no change at all.” Defs.’ Opp’n at 26–27. Again,
Defendants set the bar too high. It may be that revisiting determinations results in no change at
all or fewer wetlands. But the law does not require Plaintiff to show that the agency “would”
find more wetlands if it revisited the change in agency policy. Instead, it requires only the
possibility that the agency could find more wetlands. And Defendants’ own argument
acknowledges such a possibility. See id.
Because at least one of Plaintiff’s members can establish an injury in fact, causation, and
redressability, Plaintiff has associational standing.
Page 16 of 22 B. APA Claim
Plaintiff first contends that NRCS violated the APA by changing its policy regarding pre–
1996 wetland determinations without giving a reasoned explanation. Although Defendants
contend NRCS did not change its policy, a review of the text of its 1996 regulations contrasted
with its 2020 Final Rule, as well as agency practice over the interim period, shows that NRCS
did change its policy to be far more lenient towards certifying wetland maps, informally
beginning around 2013 and formally in the 2020 Final Rule. Because NRCS did not give a
reasoned explanation for that change in agency policy, it violated the APA.
i. Change in agency policy
As a threshold matter, the parties dispute whether NRCS changed its policy at all.
Compare Pl.’s Mot. at 25–28, with Defs.’ Opp’n at 28–41. In Plaintiff’s view, the OIG Report
reflects that NRCS changed its policy regarding its criteria for certifying pre–1996 wetland
determinations in 2013. Pl.’s Mot. at 27 (citing AR001345). Defendants, by contrast, argue that
there never was any change in agency policy, but rather, there was a period of “state-level
confusion in policy,” Defs.’ Opp’n at 40–41, that was clarified by the 2018 Interim Rule and
later the 2020 Final Rule, id. at 30–32.
A change in policy need not be the result of an “official policy” formalized by the
agency. See Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 924–29 (D.C. Cir. 2017).
In determining whether agency practice has changed, the court “independently review[s] the
administrative record.” Am. Bar Ass’n v. U.S. Dep’t of Educ., 370 F. Supp. 3d 1, 26 (D.D.C.
2019). Official agency action, statements by agency officials, and agency correspondence may
inform that inquiry. See Am. Wild Horse Pres. Campaign, 873 F.3d at 924–29; Am. Bar Ass’n,
370 F. Supp. 3d at 26–33.
Page 17 of 22 Applying that framework, the court finds that the record reflects a change in agency
policy, both in writing and in practice. The 1996 regulations did not express a view either way
on pre–1996 determinations, instead insisting that NRCS would “evaluat[e]” them for
“accuracy” in accordance with the MOA, AR000487, whereas the 2020 Final Rule provides for
pre–1996 determinations to be “considered certified if the determination was issued on the June
1991 version” of two specific forms, “the person was notified” of the certification, and “the map
document was . . . legible.” AR012005. The MOA, moreover, did not contain a legibility
requirement. See AR000376–83.
The record also reflects a change in practice between the 1996 Rule and the 2020 Final
Rule. From 1997 to 2013, NRCS repeatedly told farmers that “[m]ost wetland determinations
completed prior to July 3, 1996, are not considered ‘certified.’” AR010627; AR010615. Around
2013, however, “NRCS made significant changes in its process for wetland determinations that
allowed producers to drain and farm more wetlands.” AR001334. As the OIG Report explains,
“agency officials directed the States [in the Prairie Pothole region] to go forward with the
proposed change of accepting wetland determinations made prior to July 3, 1996” despite no
official agency action on this front. AR001344. “Senior-level NRCS officials” also
“acknowledged” the inconsistency in the way states were implementing wetland policy, but “did
not . . . indicate that they would instruct the prairie pothole States to stop using the pre-1996
determinations and argued that their continued use of the pre-1996 determinations complied with
current NRCS policy.” AR001349. Moreover, in responding to the OIG Report, NRCS itself
acknowledged that its staff played a role in the states’ treatment of wetland certifications. See
AR001350.
Page 18 of 22 Defendants’ counterarguments do not move the needle. First, they contend that NRCS’s
interpretation of the Food Security Act and its own regulations are entitled to deference. Defs.’
Opp’n at 28–30. As an initial matter, Defendants do not explain what, if any, interpretation of
the Food Security Act is entitled to deference. In addition, NRCS’s interpretation of its own
regulations is not entitled to deference because the regulations are not “genuinely ambiguous.”
See Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019). As the Supreme Court explained in Kisor,
“when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all
the standard tools of interpretation.” Id. Even then, if the traditional justifications favoring
deference do not apply or are outweighed, “courts should not give deference to an agency’s
reading, except to the extent it has the ‘power to persuade.’” Id. (citation omitted). The plain
language of the 1996 regulations and 2020 Final Rule contain different criteria for certifying
pre–1996 wetland determinations. Supra at 18. No genuine ambiguity exists, and thus no
deference is warranted.
Second, Defendants argue that NRCS began the process of issuing clarifying guidance
about its policy and instructing state offices on the correct policy when it “discover[ed]” that
state offices were not following its policy. Defs.’ Opp’n at 31–32 (citing AR000955;
AR000922–32). The OIG Report, however, claims that NRCS officials “directed” states to go
forward with a change in policy, rather than states changing their approach on their own and
NRCS finding out after the fact. See AR001344. Even so, NRCS did not merely “clarify” its
guidance in response to the OIG Report; the 2020 Final Rule provides a substantively different
requirement (legibility) than the 1996 regulations, which focused on quality criteria.
Third, Defendants claim that Plaintiff improperly references the OIG Report and other
materials “seek[ing] to replace clear statutory and regulatory language.” Defs.’ Opp’n at 32–40.
Page 19 of 22 But the court’s inquiry into agency policy is not limited to the text of statutory and regulatory
language; agency practice is properly considered. See Am. Wild Horse Pres. Campaign, 873
F.3d at 924–29; Am. Bar Ass’n, 370 F. Supp. 3d at 26–33. And again, the language of the
agency’s regulations does not support Defendants’ contentions that agency policy did not
change.
Finally, Defendants argue that the “legibility” language in the 2020 Final Rule did not
alter agency policy, but rather clarifies that older maps must still be readable to remain certified.
Defs.’ Reply at 8–9. This argument fails to address the plain language of the 2020 Final Rule,
which purports to define “sufficient quality” differently from the agency’s definition in the 1996
regulations and subsequent agency practice. Indeed, an informational memorandum regarding
the quality of existing wetland determinations concluded that there was a “high error rate” in the
pre–1996 maps because the photos were “inferior” in quality, and the “wetland delineation was
inadequate,” resulting in “incorrect determinations.” AR000542–43. Agency practice shows the
NRCS understood its policy post–1996 to conflict with its policy stated in the 2020 Final Rule.
ii. Reasoned decision-making
NRCS was required to comply with the APA in changing its policy regarding the
certification of pre–1996 wetland determinations. The APA provides that “[t]he reviewing court
shall . . . hold unlawful and set aside agency action” if it is “arbitrary” or “capricious.” 5 U.S.C.
§ 706(2)(A). “The requirement that agency action not be arbitrary and capricious includes a
requirement that the agency adequately explain its result.” Jost v. Surface Transp. Bd., 194 F.3d
79, 85 (D.C. Cir. 1999) (citation omitted). Procedurally, a reasoned explanation enables the
court to “discern” the “path” the agency took. Encino Motorcars, LLC v. Navarro, 579 U.S. 211,
221 (2016) (citation omitted); accord Jost, 194 F.3d at 85. Substantively, this requirement “is
Page 20 of 22 meant to ensure that agencies offer genuine justifications for important decisions.” Dep’t of
Com. v. New York, 139 S. Ct. 2551, 2575–76 (2019).
An agency provides reasoned decision-making when it “‘display[s] awareness that it is
changing position and ‘show[s] that there are good reasons for the new policy.’” Encino
Motorcars, 579 U.S. at 221 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009)). To fulfill this requirement, an agency must “examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational connection between the facts found
and the choice made.’” Motor Vehicle Mfrs., 463 U.S. at 43 (citation omitted); accord Encino
Motorcars, 579 U.S. at 221. And in reviewing the agency’s justification, the court must
“consider whether the decision was based on a consideration of the relevant factors and whether
there has been a clear error of judgment.” Motor Vehicle Mfrs., 463 U.S. at 43 (citation omitted).
Agency action may be arbitrary and capricious if the agency “relied on factors which Congress
has not intended it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” Id.
Defendants concede that if NRCS changed its policy, it violated the APA. They contend
instead that NRCS acted reasonably in clarifying agency policy, not changing agency policy.
Defs.’ Opp’n at 30–32. The court disagrees that NRCS merely clarified agency policy. And
because the NRCS does not acknowledge the change in its policy, it gives no explanation for that
change, much less a reasoned explanation. See, e.g., Encino Motorcars, 579 U.S. at 221; Motor
Vehicle Mfrs., 463 U.S. at 43; Am. Wild Horse Pres. Campaign, 873 F.3d at 927. The 2020 Final
Rule therefore violates the APA.
Page 21 of 22 IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment will be GRANTED
and Defendants’ Cross Motion for Summary Judgment will be DENIED. Accordingly, the 2020
Final Rule will be vacated and the case remanded to NRCS for further consideration consistent
with this decision. An Order will accompany this Memorandum Opinion.
Date: February 22, 2024
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
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