Farm Bureau weighs in on Supreme Court water case
ZERO ZIP “This isn’t a field of no regulation,” she said. “Our brief shows how expansive the state regulations are, and thosewaters are still being regulated invarious formatsand arguably, like in California, in more ex- pansive formats thantheCleanWaterAct.” The American FarmBureau Federation and other farm and business groups also filedamicusbriefsinsupportof theSacketts. “We need rules that are clear and If the federal government scales back on the Biden administration’s proposed WOTUSdefinition, Fisher said,waterswill continue to be regulated.
can be interpreted by farmers without spending thousands of dollars on legal fees,” said AFBF President Zippy Duvall. “The proposed new rule threatens to take us back to vague and complicated regulations that will keep farmers from growing the nation’s food while protect- ing the environment.” TheEPA is expected to file a response in the Supreme Court case. Fisher said she expects ahearing on thematter in the fall. (Chr i s t ine Souza i s an ass i s tant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)
ByChristine Souza TheCaliforniaFarmBureaufiledanam- icus brief supporting petitioners in a U.S. Supreme Court case in which justices are expected toruleon thescopeof the federal government’s authority to regulateprivate citizens and businesses under the Clean Water Act. Determining what is considered “wa- ters of the United States,” or WOTUS, is central to the pending case, Sackett v. Environmental Protection Agency. The case involves petitioners Michael and Chantell Sackettof Idaho,whohavebattled the EPA for years over the agency’s claims that they violated the CleanWater Act by building a home on rural property that may ormay not containwetlands. “This is such a high-profile case that a handful of state Farm Bureaus want- ed to focus on the expansion of WOTUS rules impacting agriculture and what our specific states are doing in terms of regulation,” said California FarmBureau Senior Counsel Kari Fisher, who filed the brief jointly with 19 other state Farm Bureaus. “Our amicus brief points out to the Supreme Court justices that this issue doesn’t just affect private property or a home builder but agriculture as well.” Inthebrief, theFarmBureausexpressed interest in “effective, efficient, and com- monsense rules for the protection and management of the nation’s water and land resources.” Since the enactment of the Clean Water Act in 1972, the Farm Bureaus said, the federal government has attempted to increase its authority by reg- ulating features that are wholly intrastate and that oftenarenot recognizable aswa- ter bodies at all. In thecase, theSupremeCourt ispoised todetermine theproper test for determin- ing a water of the U.S., either a “relatively permanent” or “significant nexus” test, Fisher said. “The last major Supreme Court case on this was in 2006, and it was a 4-1- 4 split with no majority,” Fisher said. “Now everyone doesn’t knowwhich test to apply, and that is why there’s been legal and regulatory back and forth with each administration.” Fisher suggested that a Supreme Court decision in this case would clarify confu- sion and put an end to various rulemak- ings and litigation over the scope of the CleanWater Act jurisdiction. “It is important toget a final decision, so ourmembers aren’t facedwith regulatory pendulumswingswitheachchangeof ad- ministration,”Fisher said. “Thehope is that the U.S. Supreme Court will weigh in and identifywhat the proper test is.” A Supreme Court decision could trig- ger the Biden administration to revise its pendingWOTUSrule,whichisexpectedto be finalized prior to the court ruling. Last year, the EPA and the U.S. Army CorpsofEngineersannouncedtheywould rewrite the rule, causing more confusion for farmers and ranchers, Fisher said. In
2015, theWOTUS rule was rewritten, and federal courtsblocked its implementation in more than half of the states. In 2020, the rule became the Navigable Waters Protection Rule, which the Farm Bureau andothers sayprovidedclearer ruleswhile ensuring clean water. That rule’s imple- mentationwas also halted in 2021.
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April 27, 2022 Ag Alert 11
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