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Government and Industry Groups Ask Court to Overturn EPA Water Rule

[SFM] Update – U.S. Streams and Wetlands – Definition of Waters of the United States (WOTUS) – The American Farm Bureau Federation, along with dozens of agricultural, business and municipal entities, have asked a federal court to “… vacate the EPA’s and the U.S. Army Corps of Engineers’ ‘Waters of the United States’ rule. The brief filed in the U.S. Court of Appeals for the Sixth Circuit … [explains] how EPA flouted important procedural safeguards designed to ensure a fair and thoughtful rulemaking process … [and] 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 …”

Web site: Source: November 1, 2016 American Farm Bureau Federation News Release, titled “Government and Industry Groups Ask Court to Overturn EPA Water Rule”, posted at
http://www.fb.org/newsroom/news_article/497/

A copy of the brief which was filed on November 1, 2016 is posted at
http://www.fb.org/tmp/uploads/BusinessMunicipalPtrsOpeningBrief.pdf

Additional Documents Related to the Clean Water Rule are available at
http://www2.epa.gov/cleanwaterrule
* Specifically at
http://www2.epa.gov/cleanwaterrule/clean-water-rule-documents-related-clean-water-rule

Previous FIEN messages related to this topic may be found by using the search term – Waters of the United States – at http://www.fien.com/login/logins.php?RELOAD=/search_article.php

Summary: The text of the November 1, 2016 American Farm Bureau Federation News Release follows:

WASHINGTON, D.C., Nov. 1, 2016 – The American Farm Bureau Federation, along with dozens of agricultural, business and municipal entities, today asked a federal court to vacate the EPA’s and the U.S. Army Corps of Engineers’ “Waters of the United States” 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 and unlawful rule.

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

“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.

A copy of the brief is attached:
http://www.fb.org/tmp/uploads/BusinessMunicipalPtrsOpeningBrief.pdf

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