Court briefed on ag industry's WOTUS woes

Industry coalition's brief focuses on constitutionality issues and administrative procedures of proposed "waters of U.S." rule.

Agriculture, industry and municipal stakeholders filed their opening brief Tuesday in the Sixth Circuit Court of Appeals in calling for the waters of the U.S. (WOTUS) rule to be vacated.

The WOTUS rule, which took effect on Aug. 28, 2015, was proposed in April 2014 by the Environmental Protection Agency and the Army Corps of Engineers to clarify the agencies’ authority over various waters. That jurisdiction – based on several U.S. Supreme Court decisions – had included “navigable” waters and waters with a significant hydrologic connection to navigable waters. However, the regulation broadened that to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati last October issued a stay on implementation of the regulation until the disposition of numerous lawsuits against it. Numerous interested parties — including 57 business and municipal petitioners in the Sixth Circuit — filed petitions for review. In all, parties filed 22 petitions for review in the courts of appeals, which were consolidated in this court.

Although not agricultural interests' preferred avenue, the lawsuit will continue in the U.S. Court of Appeals for the Sixth Circuit, where the groups now are arguing: that the agencies promulgated the WOTUS rule without following federal rule-making procedures, that the regulation is arbitrary and capricious or contrary to law and that the agencies exceeded their authority under the Clean Water Act and the U.S. Constitution.

The national agricultural groups — including the American Farm Bureau Federation (AFBF), National Cattlemen’s Beef Assn. (NCBA), National Pork Producers Council (NPPC) and National Corn Growers Assn., as well as the Chamber of Commerce, National Association of Home Builders, American Petroleum Institute and dozens of agricultural, business and municipal entities — signed on to the brief.

The coalition’s brief explains how EPA flouted important procedural safeguards designed to ensure a fair and thoughtful rule-making 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 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.

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

While it could be more than several months before the court renders a decision in the case, in issuing the stay last October, the court found there was a substantial likelihood that EPA and the Corps, in writing the WOTUS rule, failed to comply with the Supreme Court’s instructions in previous Clean Water Act cases and that the agencies’ actions in the rule-making process were “facially suspect.”

Feedstuffs subscribers can read an expanded story with industry reaction by clicking here.

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