Food Service & Agriculture, Law, and Sustainability

Law firm files motion to intervene in EPA suit

November 4, 2015
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John Bursch
John Bursch. Courtesy Warner Norcross & Judd

A law firm 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.

Warner Norcross & Judd said last month that it’s representing the Michigan Farm Bureau, a nonprofit that represents thousands of regulated farmers across the state.

In its motion to intervene, the Michigan Farm Bureau said its “interests are underrepresented” in the lawsuit and that “it wants to protect its farm members from increased and burdensome permitting regulations.”

The lawsuit — which 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 — argues that the new 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.

"Enormous problem"

The Michigan Farm Bureau’s motion argues that under the 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.

The motion points to “confusion as to when a farmer’s land is subject to government regulation.”

The organization said it wants to provide farmers basic levels of certainty with respect to which areas of their land are regulated.

By defining “waters of the U.S.,” the Clean Water Rule expands the universe of water bodies, wetlands, floodplains and other areas subject to federal jurisdiction, according to the Michigan Farm Bureau.

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.

“When the federal government felt it necessary to make clear that its expansive re-definition 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 Norcross who is representing the Michigan Farm Bureau in the case.

Impact on farmers

The motion argues that the regulation will hurt farmers by “unconstitutionally expanding the areas for which they must obtain permits for maintaining drainage, managing farmed areas, using agrichemicals and other routine activities.”

The firm said the rule puts farmers in “poor positions to identify with confidence which features of their land can be deemed waters of the U.S., without obtaining advice from expensive consultants, environmental experts and lawyers.”

Scott Hubbard, a partner at Warner Norcross 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 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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