by Ken Root and Whitney Newman
A Farm Bureau attorney says this week’s Supreme Court ruling permitting landowners to challenge Army Corps of Engineers ‘Waters of the U.S.’ findings on their land may only be part of a larger win for agriculture.
AFBF Senior Counsel for Public Policy Danielle Quist says the concurring opinions of the High Court justices in their latest ‘WOTUS’ case is telling of their possible thinking in the broader case in the lower courts.
Quist points to Justice Anthony Kennedy’s latest ruling and a 2006 case that dealt with Clean Water Act findings of government jurisdiction, where wet areas are found to connect to navigable waters.
Justice Kennedy wrote this week that the Clean Water Act, “continues to raise troubling questions regarding the government’s power to cast doubt on the full use and enjoyment of private property.”
Quist says that’s the main WOTUS issue today and the one that bubbled to the surface in a 2006 case“reflects more on the “WOTUS Rule” than simply whether landowners can sue the Army Corps of Engineers and the Environmental Protection Agency over a finding that they have jurisdictional water on their land.
Senate Judiciary Chair Chuck Grassley says Justice Kennedy is also sending a message to Congress. Grassley predicts Kennedy may now come down much harder on the EPA than he has in the past, when, and if the larger ‘WOTUS’ case comes before the high court.