LANSING, Mich. — Michigan Farm Bureau (MFB) has signed onto a lawsuit led by the states of Michigan, Ohio and Tennessee targeting the U.S. EPA and the implementation of its rule redefining Waters of the U.S. (WOTUS) in the Clean Water Act.
"Michigan Farm Bureau filed suit October 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. "This rule puts farmers in the crosshairs of an agency with nearly unlimited power over its activities."
Bednarski said when Michigan 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," added 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."
With its strict guidelines, WOTUS makes it difficult for farmers to determine if they have regulated waters on their farms, covering everything from ponding in fields to drainage ditches. "Such burdensome regulations could really hurt farming in Michigan and across the country," Bednarski said.
MFB members have been leading the fight against the EPA since the agency proposed this rule more than 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," he said.
Republican U.S. Reps. Fred Upton, who represents Michigan’s 6th District, and John Moolenaar, who represents the 4th District, support the state’s largest farm organization in its lawsuit. Upton said he has met with constituents in his district and that the EPA’s proposal is "crazy … these rules would cripple the productivity and operations of many of our growers."
"There is a real worry about the EPA getting dramatically involved in the permitting of our crops. 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," he said.
"Listening to farmers and their families in southwest Michigan, this remains the No. 1 issue weighing heavily on their minds. The negative consequences of the WOTUS rule would be dire."
Moolenaar said this is a "vital issue" for farmers in the 15 counties he serves.
"Farmers are our best conservationists," he added. "They take care of the land, they see it provide a bountiful harvest. They don’t need bureaucrats from Washington coming to their farms and regulating the puddles and ditches in their fields … Of course, the months and years of legal uncertainty for farmers could be stopped completely if the EPA would simply withdraw this rule.
"The EPA has been difficult to work with and it should not be allowed to create bureaucratic nightmares for Michigan’s hardworking farmers. The Clean Water Act protects the Great Lakes and the drinking water of Michigan residents. It’s time for the EPA to stop overstepping its legal authority and focus on protecting the waters already under its purview."
Farm Bureau’s position is the WOTUS rule unconstitutionally usurps control 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 says 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.
"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 of Warner, Norcross & Judd LLP, the firm that is serving as counsel for MFB’s suit.
"Congress intended for there to be a division between what the federal government should regulate and what should be up to the state and private landowners," said MFB Staff Attorney Tyler Ernst. "EPA’s Waters of the U.S. rule overstepped those bounds by a substantial margin."
Since its inception, 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. The 6th Circuit Court issued a temporary stay on the rule, which was announced Oct. 9.
