NCBA Legal Brief Defends State Management of Groundwater
Last week, NCBA and a group of other agricultural trade associations filed an amicus brief to the Supreme Court in the case Hawaii Wildlife Fund v. County of Maui. Last year, a decision from the Ninth Circuit Court of Appeals ruled that pollutant releases to groundwater are subject to penalty under federal law if they reach surface water, potentially expanding reach of the Clean Water Act to thousands of previously unregulated cattle operations.
The brief presents several specific agricultural practices, including manure storage and land application, that will be subject to additional scrutiny should the Court expand federal Clean Water Act authority to groundwater discharges. The brief quotes Chief Environmental Counsel Scott Yager and Deputy Environmental Counsel Mary-Thomas Hart’s recent article written for the Drake Journal of Agricultural Law: “the implementation of voluntary on-farm manure management [or fertilizer application] systems will provide no regulatory relief for agricultural producers and will even expose them to CWA liability,” leaving “[a] significant portion of agricultural producers” to “face a constant, unpreventable risk of discharge” covered by CWA Section 402.
Finally, the brief makes clear that “the policy considerations and careful balancing that are necessarily required in undertaking such a wholesale change should properly be made after due consideration by the legislative branch, not the judiciary.”
Last month, the U.S. Environmental Protection Agency released guidance reaffirming its intent to put states in the driver’s seat when it comes to managing groundwater quality. Unlike navigable waters, groundwater quality is a localized issue managed most effectively by states and localities. The Supreme Court is expected to hear Oral Arguments for Hawaii Wildlife Fund v. County of Maui this fall.