BY TIMOTHY EGGERT
The Clean Water Act (CWA) does not authorize the U.S. Environmental Protection Agency (EPA) to apply or regulate under an expanded definition of “waters of the Untied States,” Illinois Farm Bureau and 19 other state Farm Bureaus argue in an amicus brief filed recently in a case before the Supreme Court of the United States.
American Farm Bureau Federation and a dozen other national agriculture industry groups filed a similar brief last month, too.
The case could be argued in court this fall. It stems from Idaho property owners Michael and Chantell Sackett, who were told they couldn’t build a home on land they owned near Priest Lake because their property contained wetlands that qualify as “navigable waters” regulated by the CWA.
The couple wants the Supreme Court to adopt a test that would allow wetlands to be regulated only when they have a continuous surface water connection to regulated waters.
EPA in fall 2021 proposed repealing the 2020 Navigable Waters Protection Rule (NWPR), re-establishing the definition of WOTUS to what was in place from 1986 to 2015 and broadening the federal government’s authority under the CWA.
The Biden administration asked the court to deny the request as it works on the rewrite of the WOTUS rule. But in January the justices agreed to hear the case and review whether certain wetlands are protected under the federal law.
IFB and the other state Farm Bureaus argue the federal government has tried to expand its authority by regulating waters that both do not fall under the current WOTUS definition or previous case law, and applying a one-size-fits-all “substantial nexus” test to a body of water.
That’s especially the case when EPA and the U.S. Army Corps of Engineers have extended their jurisdiction over landscape features that do not regularly feature flowing or standing water, such as a desert wash that forms during an intense rain event, a human- created tire rut or a ditch exhibiting an ordinary high water mark, the state farm bureaus argue.
A broadened scope of WOTUS, the groups further argue, would mean “nearly all land use and development throughout the nation may be subject to costly and onerous federal requirements and permit processes under the CWA.”
An enlarged definition of WOTUS and EPA’s enforcement of it would also lead to “adverse impacts and hardships” on IFB members and other farmers, the groups said.
“In other words, once a feature is declared a WOTUS, landowners must secure a federal permit to undertake essentially any activity in or around the feature, including not only land clearing and construction, but also basic agricultural activities like driving a tractor over the feature or applying fertilizer to and around it,” the groups wrote.
“It means that farmers cannot plow or change to certain crops in response to droughts or other climate changes without first asking the Corps and EPA for permission,” the groups wrote. “And it means that the numerous soil conservation, stormwater management, wildlife habitat, flood control and nutrient management activities in which farmers often engage may be foregone because of the expense of applying for a federal permit.”
This story was provided by FarmWeekNow.com.