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Texas Agriculture Archive

January 16, 2004

AFBF files brief over
scope of Clean Water Act

 

The American Farm Bureau Federation has filed a "friend of the court" brief with the U.S. Supreme Court in support of a request by a Virginia landowner for review of a lower court's ruling on the scope of the Clean Water Act (CWA).

AFBF supports Newdunn Associates, LLP, in seeking Supreme Court review of a ruling by the U.S. Court of Appeals for the Fourth Circuit.

Newdunn contends that the ruling made by the appeals court in Newdunn Associates, LLP v. U.S. Army Corps of Engineers is contrary to the Supreme Court's decision in SWANCC v. U.S. Army Corps of Engineers. In SWANCC, the Supreme Court ruled that federal jurisdiction under the CWA is limited to waters that are navigable in fact, such as rivers and lakes, and to waters and wetlands that have a "significant nexus" to and are "inseparably bound up with" navigable waters such as tributaries, streams, tidal wetlands and wetlands adjacent to open waters.

In Newdunn, the appeals court reversed a ruling by a trial court which held that the Corps did not have jurisdiction over Newdunn's property. The trial court also found that wetlands on Newdunn's property were not subject to CWA regulations because they were not adjacent to navigable waters or waters of the United States.

AFBF's support of Newdunn is consistent with the organization's efforts to obtain relief for Farm Bureau members from the government's regulation of farmlands and normal farming activities under section 404 of the CWA.

"The Corps has taken the most liberal of stances on this issue and has attempted to exert section 404 jurisdiction over virtually any and all wetlands no matter how isolated or remote," AFBF wrote in the brief.

According to AFBF, the Supreme Court should review this case so that landowners' property rights will not continue to be determined on an arbitrary basis, with inconsistent results from different Corps divisions and courts throughout the country.

"This is a serious problem with the potential to impact farmers and ranchers all across the nation," said AFBF President Bob Stallman. "Allowing the U.S. Army Corp of Engineers to extend Clean Water Act jurisdiction to every roadside ditch in the country puts that agency in charge of local land use decisions, which should more properly be under the control of individual states."