Water conference

WOTUS rule argued by Ohio, AFBF in court

Merit briefs were filed by opponents of the Waters of the United States rule, including American Farm Bureau Federation and the state of Ohio, at the Sixth Circuit Court of Appeals Nov.1. These briefs present the arguments which the court will use to ultimately decide whether the WOTUS rule was lawful or not.

Ohio Attorney General Mike DeWine filed a brief on behalf of all the state petitioners, which are arguing against the WOTUS rule. This includes Ohio as well as 30 other states. A brief was also separately filed by industry plaintiffs, including American Farm Bureau in conjunction with a number of other ag industry groups.

“This rule defines ‘Waters of the United States’ to include almost every conceivable body of water in the country – even drainage or rain puddles on ordinarily dry land or creek beds – with almost no limit on federal jurisdiction. I filed this lawsuit to stop the effect of this sweeping, illegal rule,” DeWine said. “Reasonable citizens recognize the need for common-sense regulations that safeguard our water.  However, I will always challenge a federal bureaucracy that oversteps its authority and attempts to run roughshod over Ohio’s best interests and stewardship.”

Both briefs covered a number of issues that have arisen under the proposed WOTUS rule. Specifically, the states’ brief argued that the rule is not authorized by the Clean Water Act’s language, that the rule violates the administrative procedures act by not allowing for public comment on all aspects, and that the rule did not comply with the National Environmental Policy Act because no environmental impact statement was completed by the agencies prior to promulgation. The states’ also argued strongly that the WOTUS rule violates the U.S. Constitution’s 10th Amendment by infringing upon a state’s right to regulate its own waters.

The industry plaintiffs, including American Farm Bureau, also focused on the procedural issues with the rule, including a lack of appropriate public comment, unlawful advocacy campaigns conducted by U.S. Environmental Protection Agency and the arbitrary nature of the rule which conflicts with the Clean Water Act’s statutory text. Both briefs argue that the rule is constitutionally vague.

“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 respondent agencies (EPA and the Army Corp of Engineers) will submit their briefs by Jan. 18, 2017. The states and industry groups will then each be able to file a reply brief by March 8, 2017.