The American Farm Bureau Federation (AFBF) and other leading agriculture groups last week asked a federal court to vacate the Waters of the United States (WOTUS) rule developed by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers.

The brief filed in the U.S. Court of Appeals for the Sixth Circuit lays out in detail the substance of the ag groups’ allegations. It follows a year of litigation over which court had jurisdiction to hear challenges to the rule.

The coalition’s brief explains how the EPA flouted important procedural safeguards designed to ensure a fair and thoughtful rulemaking process.

Questionable tactics

The EPA, the groups said, used tactics including 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.

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.