EPA and Army Corps of Engineers Withdraw "Interpretive Rule" on Farming Practices in Wetlands

Published Feb 24, 2015
Land Use

The U.S. Environmental Protection Agency and the Army Corps of Engineers have withdrawn an unpopular agency guidance on Clean Water Act permit exemptions for farming activity.  In March 2014, the EPA and the Corps issued an Interpretive Rule on the applicability of Clean Water Act Section 404(f)(1)(A), to accompany the agencies’ revised “waters of the United States” definition.  Section 404(f)(1)(A) provides a permit exemption for the discharge of dredged or fill material from “normal farming, silviculture, and ranching activities.”  The Interpretive Rule outlined specific Clean Water Act permitting exemptions for 56 farming practices, incorporating standards set by the Natural Resources Conservation Service (NRCS).  Historically, compliance with the NRCS standards has been voluntary.  Farm groups criticized the Interpretive Rule for undermining the cooperative relationship between the agricultural community and the NRCS, and for creating uncertainty regarding many other farming practices covered by NRCS standards but not listed in the Interpretive Rule.

In the 2014 “cromnibus” funding bill, Congress included a provision requiring the agencies to withdraw the Interpretive Rule.  On January 29, 2015, EPA and the Corps of Engineers withdrew the rule as directed by Congress. The agencies’ proposed “Waters of the US” rule is still under consideration.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the Memorandum Withdrawing Interpretive Rule, click here.
  • To view the proposed “Waters of the United States” definition, click here.