AFBF: The Government Is Violating WOTUS

The American Farm Bureau, as lead for a multi-industry coalition, is accusing the Biden EPA and Army Corps of secretly violating the Supreme Court’s Waters of the U.S. ruling in Sackett vs. the EPA.  The AFBF’s Courtney Briggs chairs the Waters Advocacy Coalition of 45 industry trade associations and recently told a House panel that the EPA and Army Corps are end-running the Supreme Court with memos to regional and district offices.

“Many of the concepts outlined in these memos run counter to the decision in Sackett. The agencies offer no mechanism for appealing the memos and no opportunity for public comment. These memos are effectively rulemakings hiding in plain sight.”

Lacking, Briggs said, “clarity and certainty” for landowners, stretching the government’s reach “beyond what is legal”.

“Despite a clear ruling in Sackett, there have been no clear directions from the agencies about which water features are regulated by the federal government, and which are left to the states. Instead, the agencies are making up the rules as they go.”

And Briggs noted the government is failing to clarify the meaning of “relatively permanent and continuous surface connection,” which are crucial terms used in Sackett to define federal jurisdiction.  And she noted they’re gaining “unchecked power” to regulate land and resources and threaten farmers, builders, and others, pointing out that violators are told to pay $64,000 per day for every day of non-compliance, or face jail time.

Briggs says her group also learned of “secret implementation guidance” to Army Corps district offices, but a Freedom of Information request produced mostly redacted documents labeled “deliberative,” defying the logic of their intended use, which is to regulate.

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