WASHINGTON — As the US Environmental Protection Agency (EPA) seeks to revise the definition of “waters of the United States” (WOTUS), the National Pork Producers Council (NPPC) provided comments and testimony to the agency.

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, 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,” NPPC said in its comments.

During March, EPA announced its plans to make changes to WOTUS.

“We want clean water for all Americans supported by clear and consistent rules for all states, farmers and small businesses,” said Lee Zeldin, EPA administrator. “The previous administration’s definition of ‘waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business. Our goal is to protect America’s water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs and families to help Power the Great American Comeback.” 

According to NPPC, the 2023 WOTUS rule set during the Biden administration attempted to reverse the prior rule issued by the first Trump administration and reinstate previous WOTUS definitions.

In May 2023, the Supreme Court’s decision in Sackett v. EPA limited the agency’s authority over waterways, holding that under the Clean Water Act (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.”

While EPA updated the rule following the Supreme Court ruling, NPPC said the Biden administration retained jurisdictional categories outside the court’s definition and included preamble language and guidance memoranda, making the regulation overly broad.

“In particular, the conforming rule failed to define key phrases (‘relatively permanent’ and ‘continuous surface connection’),” NPPC added. “Not surprisingly, under EPA and Army Corps guidance, the January 2023 preamble exploit that ambiguity and interpret those phrases far too broadly. This leads to significant uncertainty for farmers and the regulated community overall.”

The significance for pork producers, as NPPC explained, is that the WOTUS rule spells out the limits of federal jurisdiction over waterways and wetlands under the CWA; an expansive definition of WOTUS that includes farm fields and ditches would lead to significant increases in regulatory and activist pressure and take away freedom to farm.

“America’s pig farmers, like others throughout the agricultural sector, strongly support the agencies’ stated intent to expeditiously obtain stakeholder input on the WOTUS definition and to undertake a rulemaking process to revise the 2023 definition with a focus on clarity, simplicity and durable improvements,” NPPC said. “This rulemaking is necessary because the ‘conforming rule’ issued in the prior administration fails to conform to Supreme Court precedent. A new rulemaking is the only way to ensure a durable, clear fix.”

In addition to its comments and testimony to EPA, the pork association joined in comments issued by the Waters Advocacy Coalition, of which NPPC is a founding member.