EPA’s Interim Rule versus Proposed Rule
There has been a lot of rhetoric thrown around lately about how agriculture has been saved from the devastating impacts of the proposed Clean Water Act definition of “waters of the U.S.” by means of an “interpretive rule” published in the Federal Register the same day as the proposed “waters of the U.S.” definition. However, most people, even those within the agencies, do not know what an “interpretive rule” is, how it functions, and how it compares to a traditional rulemaking.
A legislative rule, generally called a regulation, requires the highest threshold of public involvement and agency procedures. It requires “notice and comment” procedures. The agency must propose the regulation, take public comment on the proposal, consider those comments, respond to those comments, and then finalize the regulation. If the agency fails to complete these steps, the regulation will not be implemented and a court will remand the regulation back to the agency. At the end of the day, if the public feels their comments were not considered or the agency did not heed those comments, the regulation can be challenged in court.
On the other end of the spectrum, interpretive rules, guidance documents, and agency policy statements fall into another category. These types of actions are not supposed to affect the rights and responsibilities of citizens under the law. There has been significant litigation over the properties of a rule versus the properties of these other types of documents. If it does fall into this category, the agency is NOT required to take comments from the public, is NOT required to consider those comments, and is NOT required to respond to those comments. They are also not judicially reviewable. As you might imagine, classifying something as an interpretive rule or guidance instead of a regulation has great advantages for the agency.
In this case, the proposed “waters of the United States” rule expands federal jurisdiction over almost all waters across the country and by default, the land surrounding that water. The Interpretive Rule that was published in the Federal Register the same day as the proposed definition claims to interpret what Congress meant when it included a statutory exemption for “normal farming, silviculture and ranching activities” under the 404 Dredge and Fill Program. The EPA claims they have made right with the agricultural community by “interpreting” that exemption to only include the“normal” 56 Natural Resource Conservation Service (NRCS) practice standards, excluding all other NRCS practice standards and all voluntary conservation activities. The 56 exempted practices are defined in the interpretive rule.
By defining these very specific 56 practices, the Interpretive Rule only narrows the scope of what is considered normal farming and ranching practices under Section 404(f)(1)(A) of the Clean Water Act. These practices, such as building a fence, or grazing cattle, never needed a permit before, but now require oversight by NRCS and mandatory compliance with its standards.
Comments for the proposed rule are due October 20, 2014, a 91-day extension from the previous closing date of July 21. The closing date for comments to the interpretive rule is July 7. NCBA encourages all members to comment on both actions.