WOTUS Case Proceeds

Ag Groups Ask Court to Vacate Waters of US Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Plaintiffs in the lawsuit challenging the waters of the United States rule asked a federal court Tuesday to vacate the rule. (DTN file photo)

OMAHA (DTN) -- Plaintiffs in the legal battle over the waters of the United States, or WOTUS, rule asked a federal court Tuesday to vacate the rule in the first of what is expected to be several legal briefs filed in the coming months.

Oral arguments are slated to begin sometime after March 2017, when all sides in the case are expected to finish filing briefs in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

Plaintiffs that include dozens of agriculture groups, other industries and municipalities across the country, laid out legal arguments for eliminating the controversial rule.

Opponents of the rule that is now hung up in federal court fear the U.S. Environmental Protection Agency is extending jurisdiction to new waters. Farm groups believe the rule will require farmers and ranchers to obtain more Clean Water Act permits or face increasing federal penalties.

"In both the process leading to the rule's promulgation and the substance of the rule, the agencies disregarded the statutory and constitutional limits on their authority," the plaintiffs said in the 113-page brief.

The plaintiffs allege the EPA and the U.S. Army Corps of Engineers violated "fundamental tenets" of administrative law by not reopening a comment period on the rule after making "fundamental changes." In addition, the plaintiffs argue the agencies withheld a "key scientific report" on the rule until after a public comment period closed.

In addition, the plaintiffs allege the agencies "refused" to undertake required economic and environmental analyses on the rule, engaged in an "unprecedented propaganda campaign to promote the rule and rebuke its critics."

According to a court order last week, the federal agencies will have until Jan. 18, 2017, to file a response. All briefs are scheduled to be filed by March 29, with oral arguments to begin "as soon as practicable," the court order said.

The list of plaintiffs includes the U.S. Chamber of Commerce, American Farm Bureau Federation, the American Petroleum Institute, National Cattlemen's Beef Association, National Corn Growers Association, National Pork Producers Council and the U.S. Poultry and Egg Association.

At the end of September, intervenors on behalf of the EPA including the Natural Resources Defense Council, National Wildlife Federation, One Hundred Miles and South Carolina Coastal Conservation League, filed a motion asking the court to expedite the briefing schedule.

"In light of the current stay of the clean water rule, every delay of the resolution of these petitions comes at the expense of the health of numerous water bodies across the country and the interests of the millions of citizens who use and depend on them," the environmental groups said.

A report from the House Committee on Oversight and Government Reform last week, http://bit.ly/…, lays out many of the same issues included in the plaintiffs' brief. That report outlines the results of the committee's inquiry into the rulemaking process.

Ellen Steen, general counsel for the American Farm Bureau Federation, said in a statement Tuesday the agencies didn't follow the law in finalizing the rule.

"EPA set out to achieve a predetermined outcome and then manipulated the public notice-and-comment process to achieve that outcome," she 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 said the WOTUS rule allows the agencies leeway in making Clean Water Act determinations.

"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 groups said in the brief.

Tracy Brunner, president of the National Cattlemen's Beef Association and a cattle producer in Kansas, said in a statement Tuesday the rule is "grave concern" for farmers and ranchers across the country.

"Cattlemen and women have long asked for clarity in the Clean Water Act, yet this rule adds subjectivity," Brunner said.

"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 the start."

Dave Eliason, president of the Public Lands Council, said the WOTUS rule is hurting rural America.

"Regulatory overreach is becoming the norm for farmers, ranchers and small businesses across the country, hampering economic growth and threatening the stability of many rural communities," he said in a statement.

"Unfortunately, because Congress has repeatedly failed to act on this issue, we are fighting the legal battle to keep this rule from being implemented."

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley