A group of agricultural organizations, led by the National Pork Producers Council and the American Farm Bureau Federation, said an interpretive rule that accompanies a proposed Clean Water Act (CWA) regulation is a legislative rule that must go through notice and comment rulemaking.
In comments submitted July 7 to the U.S. Army Corps of Engineers, the U.S. Department of Agriculture and the U.S. Environmental Protection Agency, 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 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. Currently, based on several U.S. Supreme Court decisions, that includes “navigable” waters and waters with a significant hydrologic connection to navigable waters. The proposed regulation would redefine “waters of the United States” to include, among other water bodies, intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation.
The groups said they are concerned that the interpretive rule, as written, 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 – and that a practice that fails to comply with the standards will be viewed as resulting in a discharge to a water of the United States, 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 United States.
NPPC previously requested that EPA and the Corps of Engineers withdraw the interpretive rule.