Cushman: Lawsuit Against EPA Necessary

An attorney for the American Farm Bureau Federation said a lawsuit filed by the Bureau and other farm groups against the EPA’s final ‘Waters of the U.S.’ rule is needed, on top of any favorable Supreme Court ruling.  Deputy General Counsel Travis Cushman says the latest WOTUS lawsuit is needed, not just because of a possible timing gap between the Biden EPA rule effective in March and a Supreme Court decision in Sackett vs. EPA.

“Sackett could be as soon as March or as late as June of this year, but either way, even if Sackett, as we hope, tells EPA what they’re trying to do here is unlawful and incorrect, you still need a new lawsuit, which is ours, to strike down this rule, because the Sackett decision would not be addressing this current rule.”

Though Cushman and others agree a Supreme Court decision that narrows the definition of a water of the U.S. would send the EPA back to the drawing board.  He said until then, the Farm Bureau and others will argue there are limits to the government’s power to regulate private property.

“We don’t think that it’s appropriate that a farmer would need a team of lawyers and consultants to figure out what they can and can’t farm on their land. And that’s the heart of this issue. We think that the Supreme Court’s been clear on this. We think that the Clean Water Act is clear on this, that there are limits to what the EPA and the Corps can do.”

But neither the courts nor Congress has for decades been able to clearly define WOTUS as EPA has expanded its reach.

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