Farm, business groups ask court to block WOTUS rule

Dozens of agricultural, business and municipal entities have asked a federal court to vacate the "waters of the United States" rule proposed by the U.S. Environmental Protection Agency and Army Corps of Engineers.

The American Farm Bureau Federation, one of the participants in the court brief, said the agencies' actions provide "more than enough" reason to justify striking down the rule, known by the shorthand term WOTUS.

If enforced, the rule would bring more waterways under protection of the Clean Water Act. Farm Bureau and other opponents say the rule greatly expands the regulatory authority of the EPA and the Corps by increasing the number of waters that fall under their jurisdiction and expanding the lands surrounding those waters into their jurisdiction, due to the inclusion of new definitions and categories of regulated waters. A federal court temporarily halted enforcement of WOTUS nationwide last year, while it considers legal challenges to it.

The 100-page brief, filed in the U.S. Court of Appeals for the Sixth Circuit, lays out in detail the substance of the opponents' allegations. It follows a year of litigation during which the court determined it had jurisdiction to hear challenges to the rule.

The coalition brief said EPA flouted important procedural safeguards intended to ensure a fair and thoughtful rulemaking process. EPA tactics included withholding key documents until after the public comment period had closed, ignoring and ridiculing critical public comments and issuing illegal "covert propaganda" in an effort to generate superficial public support for the rule, the brief said.

"EPA set out to achieve a predetermined outcome and then manipulated the public notice-and-comment process to achieve that outcome," AFBF General Counsel Ellen Steen said. "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 said WOTUS violates the limits of the Clean Water Act and the Constitution. The coalition charged 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.

In determining whether a low area where rainwater flows across a field is a "tributary," the brief said: "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."

The brief asks that the rule be struck in its entirety.

Steen said the agencies "wrote the word 'navigable' out of the Clean Water Act, and they wrote the regulation in such vague terms that it allows bureaucrats in Washington to do just about whatever they want without providing the public with fair notice of what land features are going to be regulated. So, there's a lot that's wrong with this rule."

According to the coalition brief, WOTUS would assert agency jurisdiction "over remote and isolated features that bear no meaningful relationship to 'navigable waters.' "

The full brief is available at www.fb.org/tmp/uploads/BusinessMunicipalPtrsOpeningBrief.pdf.

Meanwhile, environmental organizations filed briefs of their own, seeking to make the WOTUS rule more stringent in its treatment of agriculture, forestry and waste-treatment facilities, among other criticisms.

Regarding a timeline for when arguments might be heard in the case, Steen said additional court briefs will be filed in the lawsuit during the next several months, and judges could hear arguments in March.

"It's almost anybody's guess how long it would take for them to hear argument and then reach a decision," she said. "It could be that we would have a decision from the court by sometime next summer, or it could go longer than that."