NCBA Offers Supreme Court Brief for Upcoming WOTUS Ruling
“I think that we are sending a clear message to the Supreme Court that the agriculture industry is certainly impacted by the definition of WOTUS and needs a clear definition and needs this issue to be settled once and for all.”
Two different tests… expansive government control versus a limited government approach… could be used to determine whether something is a federally jurisdictional water feature.
“We have argued to the Supreme Court that both tests should be satisfied in order for a feature to be jurisdictional. So, not only should it have relatively permanent flow and sufficient surface connection to downstream waters, but it should also have a significant Nexus to downstream water quality, and I think we can measure that by the presence of visual indicators. The features that are federally jurisdictional are going to be the features that most significantly contribute to downstream water quality. In our brief to the court, we made sure to note that determining that a feature isn’t federally jurisdictional doesn’t necessarily mean that it is not going to be regulated. It just means that that feature is left up to state and local management.”