Government And Industry Groups Ask Court To Overturn WOTUS

Posted by Rosemary Gordon|November 3, 2016

The American Farm Bureau Federation (AFBF), along with dozens of agricultural, business, and municipal entities, asked a federal court to vacate EPA’s and the U.S. Army Corps of Engineers’ “Waters of the United States” (WOTUS) rule. The brief filed in the U.S. Court of Appeals for the Sixth Circuit lays out in detail the substance of the groups’ allegations.

It follows a year of litigation over which court had jurisdiction to hear challenges to the expansive rule.

The coalition’s brief says EPA disregarded important procedural safeguards designed to ensure a fair and thoughtful rulemaking process. The brief also mentions EPA tactics included withholding key documents until after the public comment period had closed, ignoring critical public comments, and issuing illegal “covert propaganda” in an effort to generate superficial public support for the rule.

“EPA set out to achieve a predetermined outcome and then manipulated the public notice-and-comment process to achieve that outcome,” according to AFBF General Counsel Ellen Steen. “It treated the rulemaking process like a game to be won instead of a deliberative process for developing lawful and reasonable regulations.”

The brief also discusses how the rule violates the limits of the Clean Water Act and the Constitution. Petitioners show how the rule relies on vague definitions that allow agency enforcers to regulate land features that look nothing like “navigable waters” and provides no fair notice to the public of what features are covered, according to AFBF. In determining whether a low area where rainwater flows across a field is a “tributary,” the brief explains: “Regulators can reach any outcome they please, and regulated entities cannot know the outcome until they are already exposed to criminal liability, including crushing fines.”