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Courts Confront Army Corps of Engineers Over WOTUS

by Ken Root

 

Listen Here: Agribusiness Matters 2-1-17

The court system may be the pathway for landowners to eliminate the Waters of the U.S. rule, but the foe may be the Corps of Engineers rather than the EPA.

A recent court win by opponents of the Obama administrations controversial ‘Waters of the U.S.’ rule, may boost the chances to finally get the longstanding fight resolved. At least that’s the hope of many in agriculture.

It was a double victory for WOTUS opponents. A U.S. district court ruled against the Army Corp of Engineers’ claim a Minnesota peat mining property contained a ‘Water of the US,’ and therefore required a federal dredge and fill permit, but that was after the U.S. Supreme Court ruled landowners can challenge Corps’ jurisdictional determinations in court.

Until now, the Army Corps was the final arbitrator of WOTUS jurisdiction; landowners had to get a permit first, before turning to the courts.

National Cattlemen’s Beef Association Environmental Counsel Scott Yager says it’s a path forward to fighting the rule. “It adds momentum to the movement to get the WOTUS Rule fixed. It is showing now that the army corps made a mistake and claimed jurisdiction on a wetland that is not jurisdictional.”

Yager says the latest rulings raise questions about the Army Corps’ objectivity in making WOTUS determinations.

While opponents main focus with a new administration and Congress is to repeal the Obama WOTUS rule, Yager says ultimately, the Clean Water Act definition of a WOTUS, needs to be fixed, so farmers and ranchers are no longer at the government’s mercy in deciding if a U.S. water is on their land.

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