The National Pork Producers Council recently provided comments and testimony to the US Environmental Protection Agency as it seeks once again to revise the agency’s Waters of the United States rule, to ensure consistency with the US Supreme Court’s instruction on the scope of the Clean Water Act’s jurisdiction. Additionally, NPPC also joined in comments by the Waters Advocacy Coalition, of which NPPC is a founding member.

In May 2023, the Supreme Court limited EPA’s authority over waterways, holding that under the CWA, WOTUS “refers only to geographical features that are described in ordinary parlance as streams, oceans, rivers and lakes and to adjacent wetlands that are indistinguishable from those bodies of water due to a continuous surface connection.”

Despite that decision, the Biden administration retained jurisdictional categories outside the Supreme Court’s definition and included preamble language and guidance memoranda, making the regulation overly broad.

The 2023 Biden WOTUS rule attempted to reverse the prior rule issued by the first Trump Administration and reinstate previous WOTUS definitions. Following the May 2023 Supreme Court decision in Sackett v. EPA, the Biden Administration issued a “conforming rule,” which deleted specific language to comply with some parts of the court’s opinion but allowed other portions of the rule to remain. Specifically, while some farm ditches would be excluded, ditches and fields on other farms might be included.

NPPC’s take: In both its written comments and oral testimony to EPA, NPPC noted that pork producers have been concerned about EPA’s overreach in defining WOTUS, including past efforts by prior administrations to expand federal jurisdiction over private property to capture remote drainage features, ditches and ephemeral waterways–and millions of acres of wet spots or farmed wetlands in fields.

“The time is now right for the [current EPA] to take action, listen to stakeholders, and develop a durable definition of WOTUS that will last for decades,” said NPPC.

The WOTUS rule spells out the limits of federal jurisdiction over waterways and wetlands under the CWA. For pork producers, an expansive definition of WOTUS that includes farm fields and ditches would lead to increases in regulatory and activist pressure.

Source: National Pork Producers Council