WOTUS, otherwise known as the ‘waters of the United States’ rule, has brought more than a dozen agricultural entities to court today to file a briefing against the controversial rule which defines which streams, rivers, ponds, wetlands, ditches, and waterways are subject to the regulations of the Clean Water Act.
The American Farm Bureau Federation, the National Cattlemen’s Beef Association, the National Corn Growers Association, the National Pork Producers Council, and several other municipal and industry stakeholders filed an opening brief today in the Sixth Circuit Court of Appeals calling for the Environmental Protection Agency (EPA) and the Army Corps’ WOTUS rule to be invalidated. The brief follows a year of litigation over which the court had jurisdiction to hear challenges to the expansive and unlawful rule.
The coalition’s brief explains how the EPA flouted important procedural safeguards designed 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.
“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 explains 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.
Tracy Brunner, NCBA president and Kansas cattle producer, said in a recent release subjectivity and egregious overreach by the agencies is of grave concern for landowners nationwide.
“Cattlemen and women have long asked for clarity in the Clean Water Act, yet this rule adds subjectivity,” said Brunner. “By violating fundamental tenets of administrative law and expanding jurisdiction well beyond the text and structure of the Clean Water Act, it is very clear the WOTUS rulemaking was flawed from start.”