Existing regulations on agriculture are more than adequate to maintain and improve water quality, the National Pork Producers Council said in written testimony submitted yesterday to the Senate and House agriculture committees, which recently held hearings on a proposed rule to define “Waters of the United States” (WOTUS). The organization also said that upstream waters should not be categorically covered by the regulation. 

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers last April proposed the WOTUS rule to clarify their authority under the Clean Water Act (CWA) over various waters. Currently, that jurisdiction – based on several U.S. Supreme Court decisions – includes “navigable” waters and waters with a significant hydrologic connection to navigable waters. The WOTUS rule would broaden that to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also would encompass lands adjacent to such waters.

“We all need and want more jurisdictional clarity, and we understand the need for a rule that addresses this,” said NPPC in its testimony. “But starting from the question ‘what is jurisdictional’ is functionally backward. The goal is clean water, not the forever-expansive growth of federal jurisdiction over every drop of water and all land features and activities that affect that water, merely for the sake of jurisdiction.”

The organization pointed out that pork operations already are regulated under the Clean Water Act’s Concentrated Animal Feeding Operation rule, which regulates how pork producers store, manage, handle and use manure for crop production. Additionally, farmers are adopting and updating practices to prevent or minimize storm water discharges, not only as part of caring for their fields and conducting efficient operations but under a section of the CWA. Furthermore, under the so-called Swampbuster provisions of various Farm Bills, farmers are subject to severe penalties if they drain, dredge, fill or level agricultural wetlands for the purpose of producing a commodity.

NPPC noted that while EPA has stated it doesn’t intend to impose new restrictions on agricultural non-point source discharges that now qualify for the CWA’s exemptions from permitting, under the WOTUS rule, it would make upstream features jurisdictional.

“Making upstream features with little or no resemblance to the types of waters that fit with the Clean Water Act’s aspirational goals adds no water quality value to the downstream waters that we all want to protect,” NPPC said.

According to analyses by agricultural organizations, including NPPC, and federal agencies, the WOTUS rule would encompass millions of miles of streams and adjacent lands, subjecting any activity near or on them – including, for farmers, applying fertilizers and pesticides and (potentially) planting crops – to CWA permitting. The regulation also would expose farmers to citizen lawsuits, alleging, for example, that ditches on cropland should be regulated under the CWA.