Summary : Not all agency rules have the force of law. In March of 2014, the EPA and the Army Corps of Engineers issued an “interpretive rule” regarding section 404 of the Clean Water Act, circumventing a notice and comment period. Under the Administrative Procedure Act (APA), “interpretive rules” are merely advisory and do not carry the force of law. However, the content of this new rule implies otherwise.
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By Olympia Bowker and Michael Campinell
I. Introduction
On March 25, 2014 the EPA, in conjunction with the Army Corps of Engineers, issued an interpretive rule section 404(f)(1)(A) of the Clean Water Act (the CWA Rule). According to the EPA, this rule “further clarifies the scope of [the] statutory exemption[s]” under section 404(f)(1)(A). The EPA’s rule blends the statutory and common law requirements of legislative and interpretive rules and creates confusion for those who are subject to the change. 
An interpretive rule “advise[s] the public of the agency’s construction of the statutes and rules which it administers ”An interpretive rule is a non-legislative rule that interprets or clarifies a provision previously promulgated through a statutory mandate or an agency regulation. When an agency issues an interpretive rule, the agency clarifies or explains how an existing statute or regulation is binding on those already subject to it. Most importantly, the interpretive rule itself is not binding because the interpretation has not gone through rulemaking procedures or adjudication.
On the contrary, a legislative rule (also known as a “substantive rule”) is a rule that has the force and effect of law. A legislative rule is a binding rule that requires notice under section 533 of the APA. A federal agency can only promulgate legislative rules if Congress gave the agency the power to do so.
As evidenced above, agencies promulgate several types of rules. The content of a rule and the procedures an Agency follows should indicate: 1) which type of rule an Agency promulgated, and 2), what effect that rule has.
This blog post explores whether the CWA Rule is interpretive or legislative based on its content and procedural aspects.
II. Substantively, the CWA Rule is a Legislative Rule
The CWA Rule creates 56 additional permitting exemptions under the Clean Water Act for normal farming activities as “long as these activities are implemented in conformance with [Natural Resources Conservation Service] technical standards .” The NRCS is part of the USDA and, in regard to the CWA Rule, provides technical assistance “for farmers, ranchers and forest managers wanting to make conservation improvements on their land.” Although the EPA claims the CWA Rule is an interpretive rule, the substance of the document seems to go further than most interpretive rules and actually appears to either add exemptions to, or create further obligations within, the existing statute.
(1) whether in the absence of the rule there would not be an adequate legislative basis for the enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule.
If the answer to any of these questions is affirmative, the agency likely created a legislative rule, not an interpretive one. Applying this test to the CWA Rule, the rule seems to be legislative in nature. The first three parts of the test are answered in the negative, but it is the last question that leads to the conclusion that the EPA’s rule in this case is likely legislative.
Looking to the first three parts of the test, the Administrator of the EPA has the ability to create legislative rules to address different types of exemptions under the CWA. In the terms of the test, in the absence of the rule in question, the EPA has an adequate legislative basis to create such a rule. Second, the EPA did not publish the rule in question in the Code of Federal Regulations (CFR). Rather, the EPA published the rule only in the Federal Register and on its own website. Third, the EPA did not “explicitly invoke[] its general legislative authority.” In fact, the EPA classified the rule as interpretive, not legislative. The fourth question, however, leads to the conclusion that the CWA Rule is actually legislative in its substance.
The fourth question is: “Whether the rule effectively amends a prior legislative rule.” In order to answer this question in the affirmative, a rule must go beyond supplying “crisper and more detailed [guidance] than the authority being interpreted.” Further, an “agency’s change in its reading of a statute does not necessarily mean the rule announcing the change is legislative.” Based on these guiding principles, the CWA Rule, in this case, seems like more than an interpretive rule and is likely a legislative rule.
Simply put, the CWA Rule does not “clarify” the existing exemptions to a CWA section 404 permit. Rather, the rule adds new exemptions. The currently existing interpretation of the CWA allows for activities that are included in normal farming practices “such as plowing, seeding, cultivating, minor drainage, and harvesting .” The CWA Rule, however, does not clarify any of these “normal farming practices.” If that were the case, the rule would most definitely be an interpretive rule. Instead, the rule either adds new exemptions to the already existing list of “normal farming practices” or the CWA Rule creates further obligations for farmers seeking a section 404 exemption.
Now, in addition to “normal farming practices,” the CWA Rule may exempt additional activities, as long as those activities are pursuant to NRCS guidelines. Although the EPA may consider some of these activities “normal farming practices” already, it is possible that some these NRCS-approved activities may create additional section 404 permitting exemptions. Even if the interpretive rule does not create additional exemptions, the rule may now require farmers to take additional specific steps to exempt an activity that the NRCS did not previously guide. For example, if the EPA previously considered Animal Trails and Walkways an exempt activity, farmers must now follow the specific NRCS guidelines for the EPA to exempt that activity. These guidelines may create additional obligations for farmers seeking to exempt an activity from section 404 permitting. Currently, whether the rule creates more or less obligations for farmers is unclear.
What is clear, however, is that the CWA Rule either creates additional exemptions from section 404 permitting or the rule imposes additional requirements for farmers to be exempt from section 404 permitting. If either imposition actually exists, the rule is not interpretive, but is actually legislative. Further, both of these creations also carry the force of law because farmers either have additional exemptions under section 404 or farmers must follow specific guidelines to take advantage of an exempt activity. Therefore, based on the CWA Rule’s content, it is a legislative rule.
III. Procedurally, the CWA Rule is a Non-legislative Rule
Section 553 of the APA mandates published notice of rules, but there are exceptions. In particular, section 553 states: “this subsection does not apply to interpretive rules .” The CWA Rule is a non-legislative rule for more reasons than its title: it is an interpretive, non-legislative rule because enactment of the rule preceded notice to the public.
An interpretive rule is not binding in nature because it lacks notice, which is a requirement of rulemaking procedures and section 553 of the APA. The CWA Rule went into effect on March 25, 2014, but was published in the Federal Register on Monday, April 21, 2014. The publication noted: “While the interpretive rule is already in effect
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Although the CWA Rule meets some prerequisites of legislative rules, it does not meet them all. The CWA Rule was published in the Federal Register as required by APA section 553(b) , but this notice did not include the time, place, and nature of the public rulemaking proceedings under section 553(b)(1) because the rule went into effect one month prior.
Therefore, though the EPA is authorized to make legislative rules, the CWA Rule does not constitute a legislative rule because it did not have required notice prior to going into effect.
IV. Rule Controversy
The CWA Rule created controversy within the farming and agricultural community. Proponents of agriculture argue that the CWA Rule actually narrows the “normal farming practices” exemption because the CWA Rule requires farmers to follow a specific set of guidelines in order for the EPA to consider them exempt from section 404 permitting. Further, there are claims that many of the activities that the NRSC guides are actually already exempt under the Clean Water Act. This means, according to some, that farmers seeking exemption must now face additional barriers for the EPA to consider a “normal farming practice” exempt. While the EPA classifies the rule as interpretive because it simply clarifies section 404 exemptions, critics argue that because the rule places additional burdens on farmers, the EPA must go through the proper notice and comment period that the APA requires for rulemaking.
Shortly after the Federal Register published the CWA Interpretive Rule, a bill arose in the House of Representatives seeking to impose the “Agricultural Conservation Flexibility Act of 2014.” The “Agricultural Conservation Flexibility Act” was referred to the Committee on Transportation and Infrastructure, and explicitly states: ” Section 404(f)(1)(A) of the Federal Water Pollution Control Act (33 U.S.C. 1344(f)(1)(A)) shall be applied without regard to the interpretive rule issued on March 25, 2014, entitled U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of the Clean Water Act Section 404(f)(1)(A).'”
V. Conclusion
In sum, because the CWA Rule either creates new benefits or new obligations, the rule is legislative in nature and should go through notice and comment period under APA section 553(b). However, since no notice and comment period took place, the CWA Rule is not a legislative rule under the APA. Due to the ambiguity of what type of rule the CWA Rule is, those subject to it are not given a clear indication of whether the rule is binding, or what impact the rule may have. If the legislature fails to statutorily override the EPA’s rule, farmers and agriculturalists alike will wait in limbo while the courts decide the Rule’s nature.
Olympia Bowker is a third-year JD/Masters of Environmental Law and Policy student at Vermont Law School. Olympia is pursuing dual Water andLand Use Law Certificates and is the Senior Notes Editor at the Vermont Journal of Environment Law . Prior to law school, she earned a B.A. in Environmental Studies and Geography at the University of Vermont, collected plastics samples from the Northeast Pacific Garbage Patch, and worked on the Pacific Crest Trail. Olympia enjoys hiking, reading, and general adventuring.
Michael Campinell is a third-year JD/Masters of Environmental Law and Policy student at Vermont Law School. He is the President of the Moot Court Advisory Board and an Articles Editor on the Vermont Law Review . Michael is interested in land use and conservation, wildlife, biodiversity, and water law. Michael earned a B.S. in Environmental Science and a B.A. in political science at the University of New England and worked as a wildlife technician before attending law school. In his free time, Michael enjoys hiking, camping, snowboarding, and cooking.
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