Contact: Laura Campbell, Agricultural Ecology Department Manager
The Environmental Protection Agency's (EPA) finalized rule under the Clean Water Act (CWA) redefines what can be regulated as a Water of the United States (WOTUS) and is a massive overreach that will impact agriculture nationwide.
Michigan's delegated authority over sections of the CWA provides some protection: the Department of Environmental Quality says they believe the wetlands law passed in 2013, PA 98, complies with the CWA. They will continue to enforce the state law rather than change regulations, at least until EPA reviews that law. If EPA decides our law doesn't comply, we could lose our delegated authority and be in the same trouble the rest of the nation.
Both Michigan and American Farm Bureau Federation have joined numerous other states and agricultural, business, and governmental organizations in filing suits against the EPA's rule. MFB's application to file suit in the U.S. District Court was denied, but it was accepted in the U.S. Sixth Circuit Court of Appeals. That court issued a temporary stay October 9, 2015, barring the EPA and Army Corps of Engineers' WOTUS rule nationwide while the case is being considered. The stay gives the regulated community some breathing room in which to continue collecting their arguments to roll WOTUS back in its entirety.
"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.
The Court has most recently issued a split decision on February 22, 2016, declaring that it, and not the U.S. District Courts around the country where several other suits had been filed, has jurisdiction to hear the case. Because the decision was not unanimous with one of the 3-Judge panel stating the Court does not have jurisdiction, some parties to the case may appeal it, either to the full U.S. 6th Circuit Court, or potentially to the Supreme Court. Either way, this litigation will not be over soon.
H.R. 1732, the Regulatory Integrity Protection Act passed the House with strong support from Michigan's Congressional delegation. However, a similar bill, S. 1140, the Federal Water Quality Protection Act, stalled in the Senate before passage, and the President vetoed S.J. Res. 22, which provided joint Congressional disapproval for the rule, making a legislative solution difficult.
Current state law regulates lakes and wetlands over five acres, rivers and streams with definite bed, banks, and high water mark, and waters within 500 feet of a regulated lake or stream. This rule expands regulated waters in two ways: