Agricultural activities will likely be far more costly and difficult, at least if the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) get their way. In addition to their controversial “waters of the U.S.” proposed rule that would expand the waters that the federal government can regulate under the Clean Water Act (CWA), the EPA and Corps simultaneously released an interpretive rule with the proposed rule. An interpretive rule, unlike this specific interpretive rule, is supposed to be a non-binding interpretation of law that makes no substantive changes to the regulations.
This so-called interpretive rule allegedly helps agriculture by expanding CWA exemptions from permitting requirements for agricultural activities. As the EPA argues, “The IR [Interpretive Rule] does not eliminate or limit any existing exemptions, it only adds to the existing exemptions.” Despite this claim, the interpretive rule as written will actually narrow the existing exemptions for agriculture.
Existing Law (The “Normal Farming” Exemption)
Generally, property owners have to secure a CWA Section 404 permit when they discharge dredged material (material excavated or dredged from waters of the U.S.) or fill material (“material placed in waters such that dry land replaces water—or a portion thereof—or the water’s bottom elevation changes”) into a “water of the U.S.” An important exemption from this permitting requirement exists for “normal farming” activities.
Under Section 404(f)(1)(A) of the Clean Water Act (the “normal farming” exemption), dredge-and-fill permits are not required when the discharge into a covered water is “from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.” The examples of “normal farming, silviculture, and ranching activities” that are listed are not exhaustive. Despite this broad language, the interpretive rule puts the “normal farming” exemption at risk.
The Interpretive Rule Narrows the “Normal Farming” Exemption
Imposes Conditions. The interpretive rule, along with an accompanying memorandum of understanding (MOU) between the EPA, Corps, and the U.S. Department of Agriculture (USDA), has identified 56 Natural Resources Conservation Service (NRCS) agricultural conservation practices that fall under this “normal farming” exemption. However, to be eligible for this exemption as it applies to the 56 conservation practices, farmers and ranchers would have to meet very detailed conservation standards. Under existing law, as written, the “normal farming” exemption would likely already exempt many of these 56 practices without any detailed conservation standards.
The 56 conservation practices consist of normal farming activities, such as building a fence, mulching, and grazing cattle. As can be seen from these examples, many of the conservation practices are common and critical activities that farmers and ranchers engage in unrelated to conservation, making the impact of the interpretive rule even greater. The potential overreach is alarming. Farmers who build a fence, for example, could be subject to Section 404 permit requirements unless they meet the required standards. As explained in the MOU, “It is important to emphasize that practices are exempt only where they meet conservation practice standards.”
Excludes Conservation Practices. There are over 100 other NRCS conservation practices that have not been listed. The MOU explains:
The NRCS conservation practices standards considered as of the date of this MOU to be “normal farming” when conducted as part of an ongoing operation and thus exempt from permitting under CWA section 404(f)(1)(A) are listed in Attachment A to this MOU. Note that the agencies expect this list to evolve over time as NRCS modifies or develops new conservation practice standards.
This language suggests that the 56 listed practices are the only ones exempt from permitting and are the exhaustive list of practices that are “normal farming,” at least until the agencies make changes to the list. Therefore, the other NRCS practices, such as water wells and sprinkler systems, would likely not be considered “normal farming” and could be subject to Section 404 permitting requirements.
Farmers and ranchers will likely avoid engaging in conservation practices, as much as feasible, if it will involve new and complicated technical conservation standards or having to secure a Section 404 permit. The National Association of State Departments of Agriculture wrote in a comment on the interpretive rule, “We are concerned that the Interpretive Rule could unintentionally result in a reduction in conservation program participation and the installation of fewer water quality-enhancing conservation practices.”
Additional Problems and Limitations of the Interpretive Rule
The Interpretive Rule Can Easily Change. Unlike the proposed rule, the interpretive rule went into effect immediately without an opportunity for public comment, and the EPA and Corps can change it whenever they deem fit. The MOU makes it clear that the addition and even removal of conservation practices is a real possibility, making compliance difficult.
The Interpretive Rule Covers Only Section 404 Permits. The interpretive rule covers only Section 404 dredge-and-fill permits, not other requirements of the CWA, including other permitting requirements. Therefore, farmers and ranchers should not look to the interpretive rule for protection against the proposed “waters of the U.S. rule” in relation to non–Section 404 issues.
The Interpretive Rule Covers Only Ongoing Operations. The EPA and Corps have long interpreted the “normal farming” exemption as covering only operations that have been “ongoing.” The MOU indicates that the exemptions identified for conservation practices are no different; they are applicable only to ongoing operations. While this interpretation is nothing new, it does highlight a potentially major limitation of the interpretive rule and weakens any claim that the interpretive rule provides significant protection for farmers.
Currently, there is significant confusion even within the EPA regarding what “ongoing” means, which the American Farm Bureau Federation (AFBF) highlights in their comment on the interpretive rule. AFBF also explains: “Our research indicates that only farming ‘ongoing’ since 1977 would qualify.” If true, this would mean newer farms would not qualify for the “normal farming” exemption, including in connection to the 56 conservation practices.
What Needs to Be Done
While the proposed rule properly receives most of the attention, problems for agriculture are exacerbated by this interpretive rule. The interpretive rule is already in effect so addressing it immediately should be a major priority. Specifically:
- The EPA and Corps should repeal the interpretive rule. If they really seek to provide some clarification to farmers, they should obtain proper feedback and then go through a proper notice-and-comment rulemaking process.
If the EPA and Corps really want to clarify that conservation practices are exempt under the “normal farming” exemption, then they should state that simple point in a rule. They should not add conditions to meeting the conservation practices, because in so doing, they are narrowing existing law by limiting when conservation practices are exempt. They should also be careful not to select a subset of conservation practices because it immediately draws into question practices that fall out of that subset. The EPA and Corps should not overstate the scope of what they are doing. Explaining that conservation practices are exempt does not add any protections, but merely clarifies the law.
- Congress needs to rein in the EPA and the Corps and prohibit implementation of the interpretive rule and the proposed rule. Realistically, the EPA and the Corps will not take any action, especially when it comes to the proposed rule. The House recently passed legislation entitled “The Waters of the United States Regulatory Overreach Protection Act of 2014” (H.R. 5078) that would prohibit implementation of these rules. In addition to trying to repeal the rules, Congress should use the appropriations process to withhold funding for these rules.
The proposed “waters of the U.S. rule” is bad for farmers and ranchers; the interpretive rule only makes matters worse. Farmers and ranchers should not have to be concerned about engaging in normal farming activities under the “normal farming” exemption, yet this interpretive rule would create justified concern when carrying out even the most basic agricultural practices. This would not only affect agricultural producers but also everyone who relies on the agricultural sector for food—in other words, all Americans.
—Daren Bakst is a Research Fellow in Agricultural Policy in the Thomas A. Roe Institute for Economic Policy Studies, of the Institute for Economic Freedom and Opportunity, at The Heritage Foundation.