In a recent public hearing addressing the implementation of the Waters of the United States (WOTUS) rule by the Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA), National Pork Producers Council (NPPC) chief legal strategist Michael Formica expressed ongoing concerns about the rule’s implications for producers.
During the Obama and Biden administrations, these agencies sought to expand its authority to include waters with even a tenuous connection to covered waters, such as drains, ditches, stock ponds, and low spots on farmlands. This expansion could have required CWA permits for routine agricultural activities near those features, subjecting producers to civil and criminal penalties.
But the U.S. Supreme Court in May 2023 limited their authority, holding that CWA waters “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.”
In his remarks, Formica pointed out that EPA’s rule and its implementation, purportedly conforming with the high court’s 2023 decision, continues to lack clarity and consistency.
In particular, while farmers struggle to understand what it requires, Formica noted that it isn’t practical for farmers to seek guidance from EPA on whether an activity is legal every time they need to move dirt, plow a field, or erect a fence. Additionally, Formica raised serious concerns over EPA’s use of “internal” guidance, which has not been shared with the public, to implement and enforce its new WOTUS rule, a prospect he called “outrageous” for an already confusing law.
Formica said he continues to hear reports from farmers in multiple states that, despite the Supreme Court ruling, EPA is asserting jurisdiction over ephemeral streams that are far removed from navigable waters, including streams that weren’t even covered under the earlier expansive WOTUS rule.
