Court asked to vacate WOTUS rule

The American Farm Bureau Federation, along with dozens of agricultural, business, and municipal entities, asked a federal court Nov. 1 to vacate EPA’s and the U.S. Army Corps of Engineers’ “Waters of the United States” (WOTUS) rule.

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

In a brief that asks that the rule to be struck in its entirety, the petitions for review challenge the regulation defining “waters of the United States” within the meaning of the Clean Water Act (CWA).

“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 brief states.

“First, the agencies violated fundamental tenets of administrative law. The agencies failed to reopen the comment period after making fundamental changes to the proposed rule, and they withheld the key scientific report on which the rule rested until after the comment period closed.

“The agencies also refused to undertake required economic and environmental analyses, including a mandatory analysis of small business impacts and consideration of less burdensome alternatives; engaged in an unprecedented propaganda campaign to promote the rule and rebuke its critics, displaying a closed mind even during the public comment period; and lobbied against legislative efforts to stop the rule, which the U.S. Government Accountability Office has concluded was illegal.

“Second, the rule expands the agencies’ jurisdiction well beyond what the CWA’s text and structure allows. The agencies disregarded statutory checks on their power and distorted relevant Supreme Court precedent. At bottom, the Rule reads the term navigable out of the CWA, asserting jurisdiction over remote and isolated features that bear no meaningful relationship to ‘navigable waters.’

“Finally, the rule is unconstitutional. The Due Process Clause protects the regulated public from laws that fail to put them on notice of what is prohibited or that give government agents unchecked discretion to enforce the law in arbitrary and discriminatory ways. The rule offends both prongs of the vagueness doctrine. It opens regulated entities to severe civil and criminal penalties that rest on nebulous standards like ‘more than speculative or insubstantial,’ ‘similarly situated,’ and ‘in the region,’ and on ambiguous definitions of terms like ‘ordinary high water mark.’

“These uncertain standards are impossible for the public to understand or the agencies to apply consistently. By regulating features across the landscape that have no meaningful relationship to navigable waters, the rule also exceeds the agencies’ power under the Commerce Clause and usurps state authority under the constitution’s and the CWA’s federalist structure.”

— Gary Pullano