WASHINGTON – An interpretive rule that accompanies a proposed Clean Water Act (CWA) regulation is a legislative rule that must go through notice and comment rulemaking, said a group of agricultural organizations led by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation. NPPC previously requested that the Environmental Protection Agency (EPA) and the Corps of Engineers withdraw the interpretive rule.
More than 90 organizations said the interpretive rule “binds farmers and ranchers with new, specific legal obligations under the CWA. It modifies existing regulations interpreting the statutory term ‘normal farming, ranching and silviculture.’” The comments were recently submitted to the US Army Corps of Engineers, the US Department of Agriculture and the US Environmental Protection Agency.
This interpretive rule would exempt 56 agricultural activities from a proposed rule that would expand the jurisdiction and authority of EPA and the Corps of Engineers over certain waters, according to a press release. Based on several US Supreme Court decisions, that includes “navigable” waters and waters with a significant hydrologic connection to navigable waters. The coalition’s comments added that the proposed regulation would redefine “waters of the United States” to include intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation.
As written, the groups are concerned the interpretive rule will be construed by the agencies to require compliance with USDA Natural Resources Conservation Service (NRCS) conservation practice standards if a covered activity is within a water of the United States – which the agencies will determine. They are further concerned that a practice that fails to comply with the standards will be viewed as resulting in a discharge to a water of the US, which requires a CWA permit.
The practical effect of the interpretive rule, said the groups, is to require compliance with NRCS standards when undertaking any normal farming, silviculture or ranching activity that federal officials consider to be located in a water of the US.