Michigan Farm Bureau brief
In November 2016 a brief was filed on behalf of nearly 60 petitioners including Michigan Farm Bureau, and lays out how EPA illegally pushed the WOTUS rule forward, and what burdens and uncertainty farmers will face under the new WOTUS rule:
- EPA did not follow the required rule-making procedures.
- EPA did not properly consider public comments, other federal agencies, or their own Science Advisory Panel’s report.
- EPA broke the law by illegally funding and lobbying for its own rule.
- WOTUS violates the Clean Water Act and is not supported by science.
- WOTUS violates the Constitution’s Commerce Clause.
- WOTUS is so vague and unclear that regulated land owners cannot comply with it.
Report reveal EPA’s wrongdoing
The U.S. House of Representatives’ Committee on Oversight and Government Reform released the results of a two-year investigation in October 2016, detailing how EPA failed to follow the procedures of rulemaking when it developed the WOTUS rule, ignored fellow agencies’ concerns, cut short public comment, and let political goals and timelines drive the WOTUS rule’s development.
What the rule could mean for Michigan
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Current state law regulates lakes and wetlands over five acres, rivers and streams with definite bed, banks, and high water mark, and waters within 500 feet of a regulated lake or stream. This rule expands regulated waters in two ways:
- It regulates all “tributaries,” which is anything that has ever had a bed, bank, and high water mark, regardless of whether it has water in it. The Environmental Protection Agency (EPA) can use historical photos, satellite images, or even models to estimate where tributaries are or may have been to regulate them, with no input from landowners.
- It regulates all “adjacent waters,” which is any water of any size, up to 1500 feet away by rule and up to 4000 feet away on case-by-case basis from both regulated lakes and streams and newly regulated “tributaries.” This would greatly expand where people would have to get permits for activities.