Warner Norcross + Judd has filed a motion to intervene in a lawsuit against the U.S. Environmental Protection Agency and Army Corps of Engineers on behalf of the Michigan Farm Bureau, arguing that the new federal Clean Water Rule’s definition of “waters of the U.S.” is overly broad and will hurt farmers across the state.
The motion argues that the regulation will hurt farmers in several ways:
The motion also states that the rule’s practical effect gives the EPA and Army Corps regulatory authority over every unmanned county drain, farm ditch and low spot that collects rainwater after a thunderstorm.
In defining “waters of the U.S.,” the Clean Water Rule expands the universe of water bodies, wetlands, floodplain areas and other areas subject to federal jurisdiction. The Michigan Farm Bureau’s motion argues that, under this regulation, the EPA and Army Corps of Engineers’ regulatory scope goes beyond that provided for in the Clean Water Act or U.S. Supreme Court precedent.
“When the federal government felt it necessary to make clear that its expansive redefinition of ‘U.S. waters’ 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 John Bursch, a partner at Warner who is representing the Michigan Farm Bureau in the case. “As representative for many thousands of regulated farmers, the Michigan Farm Bureau has an independent and distinct legal interest in preventing the EPA from overstepping its authority to protect Michigan farmers from the negative impact of these sweeping regulations.
Scott Hubbard, a partner at Warner and co-author of the motion, said, “The impact on farms in Michigan could lead to costly and harmful penalties for farmers who inadvertently violate the rule’s far-reaching provisions.”
The lawsuit was filed in U.S. District Court in Ohio by the state of Ohio, Michigan Attorney General Bill Schuette on behalf of the state’s residents and the state of Tennessee – and argues that the Clean Water Rule overly broadens the scope of federal jurisdiction by extending its authority to areas better left to state regulation. The lawsuit also names Assistant Secretary of the Army Jo-Ellen Darcy and EPA Administrator Gina McCarthy as defendants.
In its motion to intervene, the Michigan Farm Bureau says its interests are underrepresented in the lawsuit and that it wants to protect its farm members from increased and burdensome permitting regulations. It also says it wants to provide farmers basic levels of certainty with respect to which areas of their land are regulated.
The motion warns that if the court does not allow the Michigan Farm Bureau to intervene in the lawsuit, the Clean Act Rule’s impact on small farming establishments in Michigan could be overlooked and lead to costly and harmful penalties for farmers who inadvertently violate its far-reaching provisions.
The motion points to Michigan’s specialty crop industries as an example of the farmers who will be negatively impacted by the rule, specifically its application to “adjacent waters.” That’s because blueberry and cranberry farms operate in or near wetlands. It also cites the state’s extensive drainage systems, arguing that the rule’s use of drain tiles as a connection to regulating surface waters will have a unique impact on Michigan’s farmers.
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