The National Pork Producers Council (NPPC), as part of the Waters Advocacy Coalition (WAC), submitted comments to the U.S. EPA, voicing its support for the agency’s proposal to define what constitutes Waters of the United States (WOTUS).
“The proposed EPA regulation is a revision in the decades-long fight over defining WOTUS, which sets forth the jurisdiction of federal regulatory authority under the Clean Water Act,” NPPC explains. “These proposed revisions come following the U.S. Supreme Court decision in Sackett v. EPA, which brought significant legal clarity to what is and isn’t WOTUS.”
WAC says the new rule “better aligns the regulatory definition of WOTUS with the CWA (Clean Water Act) and Supreme Court precedent - in particular, by defining critical terms such as ‘relatively permanent’ and ‘continuous surface connection.’”
In May 2023, the U.S. Supreme Court limited EPA’s authority over waterways, 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.”
“Despite that decision, the Biden administration wrote a WOTUS rule that had jurisdictional categories, including drains, ditches, stock ponds and low spots on farmlands, outside the high court’s definition, and included language that made the regulation overly broad,” the Waters Advocacy Coalition (WAC) said in comments submitted on that rule.
Pork Industry Applauds Definition
NPPC applauds the WOTUS rule for spelling out the limits of federal jurisdiction over waterways and wetlands under the CWA.
“For pork producers, an expansive definition of WOTUS that included farm fields and ditches would have led to significant increases in regulatory and activist pressure and taken away the freedom of farmers to operate,” NPPC says.
In the submitted comments, WAC says these new definitions provide much-needed clarity and transparency.
“They better preserve the states’ primary role in regulating water resources and land use within their boundaries, while still maintaining important protections for aquatic resources consistent with the law,” WAC says.
Uncertainty Imposes Substantial Cost, Delays Development
In its comments on the updated definition of WOTUS, WAC adds: “The Proposed Rule will provide regulatory certainty that WAC members desperately need and hopefully break the cycle of regulatory revisions with each change in administration. For decades, shifting WOTUS definitions have created a moving target for jurisdictional determinations, forcing landowners and operators to repeatedly modify plans, conduct redundant delineations and litigate disputed determinations. This uncertainty imposes substantial costs, delays development and discourages infrastructure investment.”
WAC points out that clear, stable, consistent jurisdictional rules allow for more efficient planning for projects and more effective environmental protection. At the same time, predictability benefits both the regulated community and the environment by “reducing unnecessary conflicts and enabling resources to be focused on genuine environmental protection.”
In the comments, WAC offered several recommendations to provide additional clarity, to further align the proposed definition with the CWA and Supreme Court precedent and aid implementation of the rule. Read the full comments here.
