Oct 26, 2015
Michigan Farm Bureau sues EPA over WOTUS

Michigan Farm Bureau (MFB) Oct. 26 joined the growing list of combatants targeting the U.S. Environmental Protection Agency (EPA) and the implementation of its rule redefining “Waters of the U.S.” (WOTUS) in the Clean Water Act. Perceived by many as the EPA’s attempt to extend its jurisdiction far beyond Congressionally mandated navigable waterways, the rule’s implementation since Aug. 28 has put the agency in the bullseye of a nationwide dartboard.

With its announcement today, MFB is also taking aim, signing onto a lawsuit led by the states of Michigan, Ohio and Tennessee.

“Michigan Farm Bureau filed suit Oct. 26 against the EPA to stop its ‘Waters of the U.S.’ rule from being implemented – a rule that would hurt farmers and landowners across the country,” said MFB President Carl Bednarski. “Our members have been leading the fight against EPA’s power grab ever since the agency proposed this rule over a year ago. They spoke out loud and clear throughout the rulemaking process, contacting the agency and their legislators by the thousands, asking instead for a rule that makes sense – a rule that’s clear, workable and doesn’t impose absurd regulations on landowners.”

Warner Norcross & Judd LLP is serving as counsel for MFB’s suit.

“When the federal government felt it necessary to make clear that its expansive redefinition of Waters of the U.S. was not intended to cover a backyard swimming pool, it was obvious to everyone that the rule was an enormous problem and had to go,” said lead counsel John Bursch.

MFB’s suit enjoys support from the office of Michigan Attorney General Bill Schuette, and Congressmen John Moolenaar and Fred Upton, the latter of which chairs the energy and commerce committee in the U.S. House of Representatives.

“The ill-advised Waters of the U.S. rule goes way beyond the scope of trying to protect our waterways and instead would unnecessarily harm Michigan farmers, jobs, and our economy,” Upton said. “Listening to farmers and their families in southwest Michigan, this remains the number-one issue weighing heavily on their minds. The negative consequences of the WOTUS rule would be dire.

“I remain ever-committed to standing up for our farmers, their families, jobs, and our economy in the face of this over-aggressive government overreach. I applaud the Michigan Farm Bureau for standing with our farming community and continuing efforts to shine a light on this burdensome rule.”

Farm Bureau’s position is that the WOTUS rule usurps control –unconstitutionally – over what should be managed by state-level regulatory agencies.

“As it’s written, this WOTUS rule has only created uncertainty. The details are fuzzy at best, making it virtually impossible for a farmer to determine if he or she has regulated ‘waters’ on their farm,” said Laura Campbell, manager of MFB’s agricultural ecology department. “It basically frees the EPA to regulate –under the auspices of the Clean Water Act – areas that don’t even have navigable water nearby.”

The EPA claims farmers would retain existing exemptions for agricultural practices in regulated areas, but those exemptions only apply to certain limited activities, and those activities cease being exempt if they in any way change newly regulated “waters.”

“Congress intended for there to be a division between what the federal government should regulate and what should be up to the states and private land owners,” said MFB Staff Attorney Tyler Ernst. “EPA’s Waters of the U.S. rule overstepped those bounds by a substantial margin.”

Since it took effect, more than a dozen lawsuits targeting WOTUS have cropped up from states and organizations nationwide. Thirteen western states successfully obtained an injunction barring WOTUS implementation, but the agency continued pushing WOTUS in the remaining 37 states. More recently, the temporary stay was announced Oct. 9.

Bednarski cited the collective will of MFB’s 45,000 farm families as justification for the organization’s actions.

“Our members demanded action – we needed to do more,” Bednarski said. “When Attorney General Bill Schuette filed suit on behalf of Michigan, we saw our best opportunity to join the legal fight.”

“We need to counter the rule on every front, and make sure the courts and the public understand the stance that Michigan farmers – united – are asserting,” said John Kran, MFB’s national legislative counsel. “One of our most powerful tools is our members and their experience, sharing the hardship they’d face every day, on their farms and running their businesses, if this new rule was implemented.”

The Michigan Department of Environmental Quality has stated it will continue to enforce the current state law on wetlands, streams and inland lakes, passed in 2013 with support from MFB members.

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