More than a dozen farm groups are formally supporting a pair of Idaho landowners in a Supreme Court case that could determine the regulatory reach of the Clean Water Act.
The American Farm Bureau Federation and 13 other groups filed an amicus brief backing Chantell and Michael Sackett, who were subject to a compliance order and possible fines for allegedly filling a wetland on their property.
Their brief follows amicus submissions from a host of other entities, including conservative legal foundations and home and road builders, backing the Sacketts.
The couple won their case in 2012 when the Supreme Court ruled that they could challenge EPA’s compliance order requiring restoration of the purported wetlands. EPA withdrew the order, but the Ninth Circuit Court of Appeals went ahead and issued a decision in August affirming EPA’s wetlands determination.
The Sacketts then filed their petition, arguing that the order could be reinstated at any time and seeking a review of the Supreme Court’s fractured Rapanos decision.
EPA and the Army Corps of Engineers had argued against granting the petition, noting they were already in the middle of another rewrite of the definition of “waters of the U.S.” (WOTUS). But the court agreed in January to review the Ninth Circuit decision on the question of whether the appeals court “set forth the proper test for determining” whether wetlands are WOTUS.
The farm groups want the court to go beyond the wetlands issue and revisit the 2006 Rapanos decision to adopt the reasoning of the four-judge plurality led by then-Justice Antonin Scalia, which found that WOTUS refers to "relatively permanent, standing or flowing bodies of water," but not "occasional," "intermittent," or "ephemeral" flows.
The court’s makeup was different in 2006, and it split 4-1-4, with then-Justice Anthony Kennedy agreeing with much of the dissent and disagreeing with much of the plurality’s reasoning. Appeals courts have adopted the test he put forth in his opinion, which says wetlands can be considered WOTUS if they have a "significant nexus" with navigable waters.
But the agencies “have taken an outlandishly expansive view of the phrase ‘significant nexus’ used by Justice Kennedy in his solitary concurrence, while ignoring the constraints that Justice Kennedy put on that concept,” the groups said.
The result, they said, is “the agencies assert jurisdiction over not only wetlands and wet areas isolated and distant from navigable waters, but also ditches, intermittent streams, ephemeral drainages, interstate ponds and many other features.”
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The agencies have "made a mockery of the Rapanos plurality’s 'relatively permanent' standard by defining it to include low flow for a few months, and looked to a highly distorted reading of Justice Kennedy’s lone concurrence to reach remote, desiccated features,' the groups said.
In their brief, the ag groups specifically went after the EPA/Corps proposed revised definition, which was published in December and would regulate, similar to what Kennedy had written, wetlands “that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters.”
But that definition makes it too difficult for farmers to ascertain which features of their land are subject to regulation and which are not, the groups said.
“No matter that these rules are not yet final: they illustrate the stunning breadth of the agencies’ claimed authority, with federal tentacles reaching deeper and deeper into private land and into local land- and water-use decisions,” the groups said.
“The proposed revised definition rests on malleable and uncertain concepts that give the agencies carte blanche to regulate whatever they like,” the amicus brief says, including drainage ditches.
In addition to AFBF, other groups on the brief are the American Sheep Industry Association, American Soybean Association, American Sugar Alliance, Family Farm Alliance, National Association of Wheat Growers, National Corn Growers Association, National Cotton Council, National Council of Farmer Cooperatives, National Pork Producers Council, The Fertilizer Institute, United Egg Producers, USA Rice Federation, and U.S. Poultry & Egg Association.
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