Clean Water Act
The United States Supreme Court began its new term last October with the now famous wetlands case of Sackett v. U.S. EPA. The case is one in a long line of legal battles over how to define which waters are “waters of the United States” (“WOTUS”) that are subject to federal jurisdiction under the Clean Water Act. We expected quiet waters for WOTUS as we awaited the Sackett decision. But we were wrong.
New EPA rule. The U.S. EPA made a big splash on January 18, when the agency published a new WOTUS rule to define which waters are WOTUS. Although the rule had been under consideration since the beginning of the Biden administration, many expected the EPA to hold off on finalizing the rule until after the Supreme Court’s Sackett ruling because that decision could affect the rule. The EPA chose not to wait, and the new rule became effective on March 20, 2023.
New litigation begins. Not surprisingly, the new WOTUS rule set off a new wave of litigation. A string of four federal lawsuits were filed in January and February of 2023 by many states and interest groups. The cases contest the validity of the rule and ask for preliminary injunctions preventing implementation of the rule while the cases are pending.
Two cases, two different outcomes. The Southern District of Texas made the first decision on the new litigation in Texas v. U.S. EPA, granting an injunction on March 19 for two of the lawsuits filed by Texas, Idaho, and the American Farm Bureau and other interest groups. The injunction prevents the rule from going into effect in Texas and Idaho. The federal district court determined the plaintiffs would expend significant resources complying with the rule although the rule was unlikely to withstand judicial scrutiny, creating potential irreparable harm and justifying an injunction against the rule. The Kentucky district court recent an opposite decision on March 31 in the case filed by the State of Kentucky. The Eastern District court in Kentucky v. U.S. EPA declined to issue Kentucky’s request for a preliminary injunction, concluding that because the EPA has not begun enforcing the rule in Kentucky, there is no impending injury that warrants an injunction. In both the Kentucky and Texas cases, the courts declined to issue a nationwide injunction against the new WOTUS rule.
Another injunction decision to come. Twenty four states joined together to file West Virginia v. EPA, the fourth federal lawsuit against the new WOTUS rule. Ohio is not one of the plaintiff states in the case, which challenges the rule and seeks injunctions in the states as well as a nationwide injunction. We should see a decision on the injunction request soon from the federal district court in North Dakota.
There are waves in Congress, too. Not satisfied to sit back and watch the battles over the new WOTUS rule, Congress recently took action to void the rule. Congress used its authority under the Congressional Review Act, a little-used federal law that allows Congress to invalidate an agency action. The House passed a resolution to void the rule on March 9 by a margin of 227 to 198, and the Senate voted on March 29 with 53 for and 43 against nullifying the WOTUS rule. President Biden has the power to veto the legislation, however. Neither the House nor the Senate appear to hold the two-thirds majority necessary to override a Biden veto. (UPDATE: President Biden vetoed the resolution on April 6, 2023).
Back to SCOTUS. And still, we circle back to the Sackett case and await the Supreme Court’s analysis of the proper test to use to define a “waters of the United States.” How will the ruling affect the new WOTUS rule and its litigation? Will Congress act on the Supreme Court’s ruling to establish a statutory definition for WOTUS that would preempt the EPA’s rule? As we have learned, there are more WOTUS waves yet to come.
The Environmental Protection Agency (EPA) made a big splash when it released its final rule for defining “waters of the United States” (WOTUS) on December 30. Immediate criticism and support for the new rule surfaced as many undertook the unenviable task of interpreting the rule’s 514 pages of text. Perhaps some enjoyed the challenge of deciphering the latest development in WOTUS. But how many responded with a bit of weariness, asking what this “new” rule really means for agriculture and, more importantly, does it really matter?
What does the new final WOTUS rule mean for ag?
There are several answers to this question. The first and most practical answer is that the rule changes which waters are subject to federal jurisdiction under the Clean Water Act (CWA). Through its permit programs, the CWA aims to protect water quality by preventing discharges of pollutants, dredge, or fill into a water that fits within the rule’s definition of “waters of the United States.” A water that falls into any of five categories now laid out in the new WOTUS rule is a “water of the United States” that will be subject to CWA permit requirements and regulations, once the rule is effective. But the rule also contains exceptions and exclusions to CWA jurisdiction, and waters that fall into these categories won’t be subject to CWA regulation.
The categories, exceptions, and exclusions all attempt to draw lines around waterways that are at risk for pollution and dredge and fill activities and thus should be protected under the CWA. It is the less “obvious” waterways, like wetlands and ephemeral streams, that create consternation and raise the eternal question: when is a water sufficiently connected to an “obvious” water body, and thus at risk for harm, to warrant CWA regulation? The new rule tries, once again, to answer this difficult question. As it does so, it repeats many of the categories, exceptions, and exclusions that we’ve seen in previous WOTUS rules, but there are some changes and attempts at clarification. For an explanation of the new rule’s categories, exceptions, and exclusions, see this summary of the rule by our partner, the National Agricultural Law Center. Agricultural interests have reacted to the changes in the rule; see this article for those reactions.
A second and more skeptical answer to the question of what the rule really means for agriculture is that it modifies the landscape for legal challenges to WOTUS. As history illustrates, the new WOTUS rule will be challenged as the agencies interpret and enforce the rule against agriculture and other regulated communities. New rule, new arguments, new court decisions--it’s a cycle we’ve witnessed before. And a legal challenge to the validity of the rule itself, not just to an application of the rule, is also likely. The court cases that arise from such challenges might help answer the question of what the rule really means for agriculture or might instead create more confusion and continued battles.
Does the new rule really matter?
If you’ve followed WOTUS recently, you may know that the United States Supreme Court (SCOTUS) heard an appeal in October by the Sacketts, landowners who were affected by an agency interpretation that subjected their property to CWA jurisdiction. That challenge centered on whether the “significant nexus” test is an appropriate test for determining whether the wetlands on the Sackett property fall into the definition of “waters of the United States.” The new WOTUS rule contains a renewed EPA attempt to clarify the “significant nexus” test and also introduces a new “material influence” standard for smaller waters and wetlands. As we await the SCOTUS decision, we must acknowledge that its outcome could require EPA to rewrite any parts of the rule, especially the significant nexus and material influence provisions, that conflict with the Court’s holding.
Due to the impending SCOTUS decision and potential legal challenges to the rule, the WOTUS rule might not even go into effect. The rule cannot be effective until 60 days have passed from the date it is published in the Federal Register. It has not yet been published in the Federal Register, so the 60-day time clock is not yet ticking. There’s a slight possibility SCOTUS will rule before that effective date, and also a possibility that if the rule does become effective, immediate legal challenges will put the rule on hold. In both situations, we have an answer to the question of what the rule means for ag: possibly nothing.
I have never experienced such exhaustion over a legal issue as I have with WOTUS. That’s because we have yet to solve the problem despite a long, long, parade of court cases and revised rules. We still await clarity to the definition of WOTUS and certainty on which waters should be subject to CWA. Congress could take a shot at doing so, given that Congress enacted the CWA and established the very term, “waters of the United States.” Yet Congress sits silent on the issue.
For me, it is the overlooked questions, and the need to examine the big picture, that most contribute to WOTUS weariness. Is the WOTUS battle effectively addressing water quality? Is it time to admit that a fix to WOTUS might require a new approach? Under the old adage of “check your premises,” perhaps we should examine the premise upon which WOTUS rests—waters that are “inside” the scope of the definition are similar, all under the same risks, and should all be regulated by CWA. While the obvious and easily identifiable water bodies can benefit from WOTUS and CWA, should we quit trying to define those other waters and instead focus on different mechanisms that manage water quality risks to them? Would we get further, faster, with a new approach?
The final question: is there actual improvement in water quality that comes with yet another rule, another change, and more challenges to the scope of the definition of WOTUS? The answer to that question, I fear, is no--but a focus on that question could be a way to overcome WOTUS weariness.
The first two weeks of the U.S. Supreme Court’s new term are important ones for agriculture. The Court will hear arguments in two critical cases: the “Sackett” wetlands case and a challenge to California’s animal welfare law, Proposition 12. The new term for the Supreme Court (SCOTUS) begins October 3, with the Sackett case up as the Court’s first hearing. The Court will hear the Proposition 12 case on October 11. We focus this article on the Sackett case and will preview the Proposition 12 case next week.
The Sackett wetlands case, round 1. The Sacketts may have become household names across the country in 2012, after the U.S. EPA prohibited Michael and Chantell Sackett from building a home on land they had purchased near Priest Lake, Idaho. The Sacketts had filled wetlands on the property in preparation for construction, but the EPA issued a compliance order prohibiting further filling or construction and requiring restoration of the site. The agency claimed authority to do so by declaring the wetlands to be “navigable waters of the United States” subject to the Clean Water Act (CWA). The Sacketts challenged the order and EPA’s authority over their land. However, lower federal courts declined to hear the case, believing the compliance order was not yet a “final agency action” that could be reviewed since the EPA had not yet enforced the order. The case proceeded to its first appearance before SCOTUS, where the Court held that the compliance order was indeed a final agency action that could be reviewed in court.
Back in court. The Sackett case returned to the lower courts for determining whether the EPA had authority over the Sackett property. The issue became a common one for CWA cases: whether the Sackett wetlands were “waters of the United States” that fall under the CWA and the EPA’s authority. The challenge of that issue, however, is determining which “test” to apply to the situation. A court establishes a “test” as a framework for analyzing an issue. Over the years, courts have struggled to agree on a clear test for determining when a wetland qualifies as “waters of the United States” that are subject to the CWA. At this time, there are two competing tests developed by the Supreme Court: the “significant nexus” test advocated by Justice Kennedy and the “continuous surface connection” test proposed by Justice Scalia. Both the Trump and Biden administrations have also attempted to clarify the proper test by way of agency rulemaking, but those efforts are now tied up in litigation and revised rulemaking.
The Ninth Circuit decision. The Sacketts are now before SCOTUS for a second time because they believe the Ninth Circuit Court of Appeals did not use the proper test in their case. The appellate court applied the “significant nexus test,” which states that wetlands are “waters of the United States” when there is a “significant nexus” between the wetlands and navigable waters, as determined when the wetlands “either alone or in combination with the similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other cover waters more readily understood as ‘navigable.’” The significant nexus test represents a broader definition and would subject more wetlands to EPA authority than Justice Scalia’s test. Many argue that it’s also unclear and creates uncertainty for landowners.
The SCOTUS appeal. The question the Sacketts now raise with SCOTUS is whether the significant nexus test applied by the Ninth Circuit was the proper test to use for its wetland determination. The Sacketts argue that it isn’t. They also urge SCOTUS to adopt an alternative test akin to Justice Scalia’s test in Rapanos v. U.S., which states that wetlands should have a “continuous surface connection” to “relatively permanent, standing or flowing bodies of water” to be deemed “waters of the U.S.” The Scalia test, by requiring a continuous surface connection between wetlands and “permanent” waters, would narrow the extent of wetlands that are subject to the Clean Water Act.
Predictions. The Supreme Court surprised many when it announced its decision to once again review the Sackett case. Given the changes to the composition of the Court since it heard the Rapanos case back in 2006, a logical prediction is that the Court will not only set aside the Ninth Circuit’s application of the significant nexus test, but will also adopt Justice Scalia’s test as the proper way to determine when a wetland is a “water of the United States” subject to EPA jurisdiction under the Clean Water Act. We won’t know whether those predictions will become truth until sometime in 2023, when we can expect another Sackett decision from the Court.
Listen to the arguments in Sackett v EPA at 10:00 am on Monday, October 3 on the SCOTUS website at https://www.supremecourt.gov/oral_arguments/live.aspx or listen to the arguments on sites like https://www.c-span.org/supremeCourt/.
Did you know that ants are the only creatures besides humans that will farm other creatures? It’s true. Just like we raise cows, sheep, pigs, and chickens in order to obtain a food source, ants will do the same with other insects. This is particularly true with aphids. Ants will protect aphids from natural predators and shelter them during heavy rain showers in order to gain a constant supply of honeydew.
Like an ant, we have done some heavy lifting to bring you the latest agricultural and resource law updates. We start with some federal cases that deal with the definition of navigable waters under the Clean Water Act, mislabeling honey products, and indigenous hunting rights. We then finish with some state law developments from across the country that include Georgia’s right to farm law and California’s Proposition 12.
Supreme Court to review navigable waters definition under the Clean Water Act. The Supreme Court announced that it would hear the case of an Idaho couple who have been battling the federal government over plans to build their home. Chantell and Mike Sackett (“Plaintiffs”) began construction on their new home near Priest Lake, Idaho but were halted by the Environmental Protection Agency (“EPA”). The EPA issued an administrative compliance order alleging that Plaintiffs’ construction violates the Clean Water Act. The EPA claims that the lot, on which the Plaintiffs are constructing their new home, contains wetlands that qualify as federally regulated “navigable waters.” Plaintiffs are asking the Court to revisit its 2006 opinion in Rapanos v. United States and help clarify how to determine when a wetland should be classified as “navigable waters.” In Rapanos, the Court found that the Clean Water Act regulates only certain wetlands, those that are determined to be “navigable waters.” However, two different tests were laid out in the Court’s opinions. The Court issued a plurality opinion which stated that the government can only regulate wetlands that have a continuous surface water connection to other regulated waters. A concurring opinion, authored by Justice Kennedy, put forth a more relaxed test that allows for regulation of wetlands that bear a “significant nexus” with traditional navigable waters. Justice Kennedy’s test did not take into consideration whether there was any surface water connection between the wetland and the traditional navigable waters. In the lower appellate court, the Ninth Circuit Court of Appeals used Justice Kennedy’s “significant nexus” test to uphold the EPA’s authority to halt Plaintiffs’ construction. Now, Plaintiffs hope the Supreme Court will adopt a clear rule that brings “fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”
SueBee sued for “bee”ing deceptive. Sioux Honey Association Cooperative (“Defendant”) finds itself in a sticky situation after Jason Scholder (“Plaintiff”) brought a class action lawsuit against the honey maker for violating New York’s consumer protection laws by misrepresenting the company’s honey products marketed under the SueBee brand. Plaintiff claims that the words “Pure” or “100% Pure” on the Defendant’s honey products are misleading and deceptive because the honey contains glyphosate. Defendant filed a motion to dismiss the class action lawsuit and a federal district court in New York granted Defendant’s motion in part and denied it in part. Defendant asked the court to find that its labels could not be misleading as a matter of law because any trace amounts of glyphosate in the honey is a result of the natural behavior of bees interacting with agriculture and not a result of Defendant’s production process. However, the court declined to dismiss Plaintiff’s mislabeling claims. The court concluded that a reasonable consumer might not actually understand that the terms “Pure” or “100% Pure” means that trace amounts of glyphosate could end up in honey from the bees’ foraging process. The court also declined the Defendant’s request to dismiss Plaintiff’s unjust enrichment claim because of the alleged misrepresentations of the honey. However, the court did dismiss Plaintiff’s breach of express warranty claim and request for injunctive relief. The court dismissed Plaintiff’s breach of express warranty claim because Plaintiff failed to notify Defendant of its alleged breach of warranty, as required by New York law. Plaintiff’s request for injunctive relief was also dismissed because the court could not find any imminent threat of continued injury to Plaintiff since he has now learned that the honey contains trace amounts of glyphosate. The court ordered the parties to proceed with discovery on Plaintiff’s remaining claims, keeping the case abuzz.
Indigenous Hunting Rights. Recently, two members of the Northwestern Band of the Shoshone Nation (“Northwestern Band”) were cited for hunting on Idaho lands without tags issued by the state. The Northwestern Band filed suit against the state of Idaho declaring that its members possessed hunting rights pursuant to the Fort Bridger Treaty of 1868 (the “1868 Treaty”). The 1868 Treaty provided that the Shoshone Nation agreed to permanently settle on either Fort Hall Reservation, located in Southeastern Idaho, or Wind River Reservation, located in Western Wyoming. By agreeing to settle on one of the two reservations, the Shoshone Nation was granted hunting rights on unoccupied lands of the United states. However, the Northwestern Band ended up settling in Northern Utah and not on one of the two named reservations. After considering the 1868 Treaty, the Federal District Court of Idaho dismissed Northwestern Band’s lawsuit. The court held that the hunting rights contained in the 1868 Treaty were tied to the promise to live on one of the reservations, and that a tribe cannot receive those hunting rights without living on one of the appropriate reservations. Thus, the court found that because the Northwestern Band settled in Northern Utah and not on one of the reservations, the hunting rights of the 1868 Treaty did not extend to the Northwestern Band of the Shoshone Nation.
Tensions rise over Georgia’s Freedom to Farm Act. A few days ago, Georgia lawmakers introduced legislation that seeks to further protect Georgia farmers from nusiance lawsuits. House Bill 1150 (“HB 1150”) proposes to change current Georgia law to protect farmers and other agricultural operations from being sued for emitting smells, noises, and other activities that may be found offensive by neighboring landowners. Georgia’s current law, which became effective in 1980, does provide some protection for Georgia farmers, but only from neighboring landowners that have moved near the farm or agricultural operation after the current law went into effect. All neighboring landowners that lived near the farming operation prior to the current law going into effect have retained their right to sue. HB 1150, on the other hand, will prevent these nuisance lawsuits by all neighboring landowners, as long as the farm or agricultural operation have been operating for a year or more. Passing a right to farm law has proven to be difficult in Georgia. In 2020, House Bill 545, also known as the “Right to Farm bill” failed to pass before the final day of the 2019-2020 legislative session. Private landowners, farmers, and their supporters, are divided on the issue and seek to protect their respective property rights. It doesn't look like HB 1150 will have the easiest of times in the Georgia legislature.
Confining California's Proposition 12. Meat processors and businesses that sell whole pork meat in California (collectively the “Petitioners”) have delayed the enforcement of California’s Proposition 12 (“Prop 12”), for now. Prop 12 is California’s animal confinement law that has sent shockwaves across the nation as it pertains to raising and selling pork, eggs, and veal. Last week, the Superior Court for Sacramento County granted Petitioners’ writ of mandate to delay the enforcement of Prop 12 on sales of whole pork meat. Petitioners argue that Prop 12 cannot be enforced until California has implemented its final regulations on Prop 12. To date, California has yet to implement those final regulations. California, on the other hand, suggests that final regulations are not a precondition to enforcement of Prop 12 and the civil and criminal penalties that can be brought against any farmer or business that violates Prop 12. The court disagreed. The court found that the language of Prop 12, as voted on by California residents, explicitly states that California voters wanted regulations in place before the square-footage requirements of Prop 12 took effect. Therefore, the court granted Petitioners’ writ of mandate to prevent the enforcement of Prop 12 until final regulations have been implemented. The court’s writ will remain in effect until 180 days after final regulations go into effect. This will allow producers and businesses to prepare themselves to comply with the final regulations. Opponents of Prop 12 believe this is another reason why the Supreme Court of the United States should review California’s Proposition 12 for its constitutionality.
As planting season draws to a close, new agricultural issues are sprouting up across the country. This edition of the Ag Law Harvest brings you federal court cases, international commodity news, and new program benefits affecting the agriculture industry.
Pork processing plants told to hold their horses. The USDA’s Food Safety and Inspection Service (“FSIS”) is not going to appeal a federal court’s ruling that requires the nation’s hog processing facilities to operate at slower line speeds. On March 31, 2021, a federal judge in Minnesota vacated a portion of the USDA’s 2019 “New Swine Slaughter Inspection System” that eliminated evisceration line speed limits. The court held that the USDA had violated the Administrative Procedure Act when it failed to take into consideration the impact the new rule would have on the health and safety of plant workers. The court, however, only vacated the provisions of the new rule relating to line speeds, all other provisions of the rule were not affected. Proponents of the new rule claim that the rule was well researched and was years in the making. Further, proponents argue that worker safety was taken into consideration before adopting the rule and that the court’s decision will cost the pork industry millions. The federal court stayed the order for 90 days to give the USDA and impacted plants time to adjust to the ruling. All affected entities should prepare to revert to a maximum line speed of 1,106 head per hour starting June 30, 2021.
Beef under (cyber)attack. Over the Memorial Day weekend, JBS SA, the largest meat producer globally, was forced to shut down all of its U.S. beef plants which is responsible for nearly 25% of the American beef market. JBS plants in Australia and Canada were also affected. The reason for the shut down? Over the weekend, JBS’ computer networks were infiltrated by unknown ransomware. The USDA released a statement showing its commitment to working with JBS, the White House, Department of Homeland Security, and others to monitor the situation. The ransomware attack comes on the heels of the Colonial Pipeline cyber-attack, leading many to wonder who is next. As part of its effort, the USDA has been in touch with meat processors across the country to ensure they are aware of the situation and asking them to accommodate additional capacity, if possible. The impact of the cyber-attack may include a supply chain shortage in the United States, a hike in beef prices at the grocery store, and a renewed push to regulate other U.S. industries to prevent future cyber-attacks.
Texas has a new tool to help combat feral hogs. Texas Agriculture Commissioner, Sid Miller, announced a new tool in their war against feral hogs within the state. HogStop, a new hog contraceptive bait enters the market this week. HogStop is being released in hopes of curbing the growth of the feral hog population. According to recent reports, the feral hog population in Texas has grown to over 2.6 million. It is estimated that the feral hogs in Texas have been responsible for $52 million in damage. HogStop is an all-natural contraceptive bait that targets the male hog’s ability to reproduce. HogStop is considered a 25(b) pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which allows Texas to use it without registering the product. Commissioner Miller thinks HogStop is a more humane way to curb the feral hog population in Texas and hopes that it is the answer to controlling the impact that feral hogs have on farmers and ranchers. More information about HogStop can be found at their website at www.hogstop.com.
USDA announces premium benefit for cover crops. Most farmers who have coverage under a crop insurance policy are eligible for a premium benefit from the USDA if they planted cover crops this spring. The USDA’s Risk Management Agency (“RMA”) announced that producers who insured their spring crop and planted a qualifying cover crop during the 2021 crop year are eligible for a $5 per acre premium benefit. However, farmers cannot receive more than the amount of their insurance premium owed. Certain policies are not eligible for the benefit because those policies have underlying coverage that already receive the benefit or are not designed to be reported in a manner consistent with the Report of Acreage form (FSA-578). All cover crops reportable to the Farm Service Agency (“FSA”) including, cereals and other grasses, legumes, brassicas and other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time, are eligible for the benefit. To receive the benefit, farmers must file a Report of Acreage form (FSA-578) for cover crops with the FSA by June 15, 2021. To file the form, farmers must contact and make an appointment with their local USDA Service Center. More information can be found at https://www.farmers.gov/pandemic-assistance/cover-crops.
Federal court vacates prior administration’s small refinery exemptions. The Tenth Circuit Court of Appeals issued an order vacating the EPA’s January 2021 small refinery exemptions issued under the Trump administration and sent the case back to the EPA for further proceedings that are consistent with the Tenth Circuit’s holding in Renewable Fuels Association v. EPA. The Tenth Circuit held that the EPA may only grant a small refinery exemption if “disproportionate economic hardship” is caused by complying with Renewable Fuel Standards. The EPA admitted that such economic hardship may not have existed with a few of the exemptions granted and asked the court to send the case back to them for further review. The order granted by the Tenth Circuit acknowledged the agency’s concession and noted that the EPA’s motion to vacate was unopposed by the plaintiff refineries.
Michigan dairy farm penalized for National Pollutant Discharge Elimination System violations. A federal district court in Michigan issued a decision affirming a consent decree between a Michigan dairy farm and the EPA. According to the complaint, the dairy farm failed to comply with two National Pollutant Discharge Elimination System (“NPDES”) permits issued under Section 402 of the Clean Water Act. The violations include improper discharges, deficient maintenance and operation of waste storage facilities, failing to report discharges, failing to abide by its NPDES land application requirements, and incomplete recordkeeping. The farm is required to pay a penalty of $33,750, assess and remedy its waste storage facilities, and implement proper land application and reporting procedures. The farm also faces potential penalties for failing to implement any remedial measures in a timely fashion.
Since the advent of the Clean Water Act (CWA), states have attempted to address agricultural nutrient pollution through the National Pollutant Discharge Elimination Permit (NPDES) system. But legal challenges have plagued state NPDES permit programs from their beginnings, and litigation has become a common tool for reducing water quality impacts from manure and other agricultural nutrients. States have developed their own water quality laws and policies, and there have been legal challenges to those as well. These legal challenges arise from environmental interests and impacted neighbors and communities and can be pre-emptive or reactionary. Our newest report for the National Agricultural Law Center examines litigation involving agricultural nutrients from 2018 through 2020.
In the report, the cases are broken down into several categories. We examine what the courts have to say when it comes to NPDES permits for individual farms and whether they are properly issued by states, whether or not the government (state and federal) is following its own laws and regulations when carrying out water pollution policies, the validity of state CAFO General Discharge permits, and whether or not neighboring landowners have redress for potential agricultural runoff. Some of the cases are challenges to state water quality laws, or the issuance of an NPDES permit. A few other cases directly target agricultural producers. The report is entitled Agricultural Nutrients and Water Quality: Recent Litigation in the United States, and can be found here.
In addition to the paper, we also recently updated part of our nutrient management project on the National Agricultural Law Center’s website. The project was first published last year, and includes a report and a state chart. The chart tracks which states require nutrient management plans, nutrient application restrictions, and certification and education for nutrient applicators, and can be found here. The chart also provides links to states’ nutrient management laws and regulations. A few changes and additions have been made to state laws and regulations within the chart.
The USDA’s National Agriculture Library funded our research on these related projects, which we conducted in partnership with the National Agricultural Law Center.
Even with most of the country shut down, the U.S. EPA and the Supreme Court last week released an important rulemaking and a decision, respectively, regarding how parts of the Clean Water Act will be interpreted going forward. On April 21, 2020, the EPA and the Department of the Army published the Trump administration’s final rule on the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). Then, on April 23, the Supreme Court released its long awaited opinion determining whether or not pollutants from a point source, which are released and then carried by groundwater into a navigable water, must be permitted under the CWA.
Trump’s new WOTUS
If you recall, we explained this final rule in January when the draft version was released. Basically, the Trump administration wanted to repeal and replace the Obama administration’s 2015 WOTUS rule (explained here) because the administration felt that it was overreaching in the waters it protected. The Trump administration did repeal the 2015 rule, and replaced it with the old 1986/1988 version of the WOTUS rule while they worked on the new version. (See an explanation of the 1986/1988 language here.)
So what is included in the administration’s new definition? The following are defined as WOTUS, and therefore subject to the CWA under the new rule:
- The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide;
- Lakes and ponds, and impoundments of jurisdictional waters; and
- Adjacent wetlands.
Importantly, the new rule also includes an extensive list of what waters are not WOTUS, and therefore will not be protected by the CWA:
- Waters or water features that are not identified in the definition of WOTUS, above;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral (caused by precipitation) features, including ephemeral streams, swales, gullies, rills, and pools;
- Diffuse stormwater run-off and directional sheet flow over upland;
- Ditches that are not territorial seas, waters used in foreign commerce, or tributaries, and those portions of ditches constructed in some adjacent wetlands;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that are connected the territorial seas, or waters used in interstate or foreign commerce;
- Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features constructed or excavated in upland or in nonjurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
- Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
- Waste treatment systems.
Currently, the 1986/1988 rules are the law of the land until this new rule goes into effect on June 22, 2020. While this is the so-called “final” rule, chances are that it will be anything but final. Like Obama’s 2015 rule, this new 2020 rule will probably be subject to lawsuits, this time from environmental groups and some state governments. If you want to know more about WOTUS, our colleagues at the National Ag Law Center have created a very helpful timeline that explains all the different definitions of waters of the United States.
U.S. Supreme Court determines the scope of a “point source”
The CWA requires the polluter to obtain a permit from the EPA if pollutants are being discharged from a point source into navigable waters. Under the CWA, “point source means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” The term “navigable waters” is defined as “the waters of the United States, including the territorial seas.”
In County of Maui, Hawaii v. Hawaii Wildlife Fund et. al., the United States Supreme Court was tasked with determining whether water treated by the County of Maui, which is pumped into the ground water and then travels about half a mile before it goes into the Pacific Ocean, requires a point source permit from the EPA. Ultimately, in a 6-3 majority led by Justice Breyer, the court decided that yes, in this case, a permit would be required. However, that does not mean that every conveyance through ground water will have the same outcome.
So, how did the court come to this conclusion? First, Justice Breyer examined the meaning of the word “from” in the CWA. Remember that the definition of a point source “means any discernible, confined, and discrete conveyance…from which pollutants are or may be discharged.” On one hand, Breyer says that the Ninth Circuit’s definition of “from” was too broad, and on the other, he says that Maui’s definition was too narrow. The Ninth Circuit adopted a “fairly traceable” approach, meaning that permits would be required for any pollutant that is “fairly traceable” back to a point source. Breyer and the majority say that the Ninth Circuit took it too far, because then any pollutant that travelled for years and years or many miles could be considered to be “from” a point source. Maui County argued that “if at least one nonpoint source” is “between the point source and the navigable water,” then no permit is necessary under the CWA. The majority felt this was too narrow, because then every time a pollutant was moved along to a navigable water by a little bit of rainwater or a small stretch of groundwater, the polluter would be free to pollute without a permit. In other words, there would be a huge loophole in the statute—because the polluter or “pipe’s owner, seeking to avoid the permit requirement,” could “simply move the pipe back, perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea.” What is more, Breyer cites congressional actions and history to interpret that Congress did not mean to make the statute as broad as the Ninth Circuit found it to be, nor as narrow as Maui County and the EPA suggest.
If the majority determined that one side read the statute too liberally and one too narrowly, then in what situations are point source permits required? Well, the court takes a kind of “we know it when we see it” approach. The court says that a permit is required “when there is a direct discharge from a point source into navigable waters or when there is a functional equivalent of a direct discharge.” The court further explains this language saying that a “functional equivalent” happens when pollutants reach the “same result through roughly similar means.” The court then provides some examples. For instance, a permit is obviously needed if a pipe ends just a couple of feet from a navigable water, and the pollutants then travel underground or across the land to the navigable water. However, “[i]f the pipe ends 50 miles from navigable waters,” the pollutants would travel through a long stretch of groundwater, mixing with other pollutants, and taking years to reach the navigable waters. In this situation, the court says a permit would likely not be required. Finally, Breyer lists relevant factors to consider when determining whether a permit is required:
- Transit time,
- Distance traveled,
- The nature of the material through which the pollutant travels,
- The extent to which the pollutant is diluted or chemically changed as it travels,
- The amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source,
- The manner by or area in which the pollutant enters the navigable waters, and
- The degree to which the pollution (at that point) has maintained its specific identity.
Note that other factors could apply. In addition, the court says that time and distance will often be the most important factors, but not always. In the future, the EPA and lower courts will use this guidance to determine whether or not a point source permit is required.
Two major actions took place last week that will guide how the CWA is carried out going forward. Trump’s WOTUS rule could be taken down by lawsuits or replaced by the next administration, and the Supreme Court’s ruling may be further clarified by future decisions. As of today, though, these are the guidelines for implementing the CWA.
For the last several years, the state of Ohio and the U.S. EPA have been plagued with objections and lawsuits—from states, local governments, and environmental groups—concerning Ohio’s list of impaired waters and development of total maximum daily loads (TMDLs) for the Western Basin of Lake Erie. (Some of our past blog posts on the subject are available here, here, and here.) Under the Clean Water Act (CWA), states are required to submit a list of impaired, or polluted, waters every two years. Typically, designating a water body as impaired triggers a review of pollution sources, determinations of TMDLs for different pollutants, and an action plan for meeting those TMDLs. Ohio repeatedly failed to include the Western Basin in its list of impaired waters, even though the area has been subject to pollution-caused algal blooms in recent years. When the state finally listed the Western Basin waters as impaired in 2018, it still did not develop the accompanying TMDL for the area. However, Ohio’s TMDL drought ended last week.
Ohio EPA announced on February 13, 2020, that it would develop TMDLs for the Western Basin “over the next two to three years.” This decision will ultimately affect farmers in the watershed, as it is likely that the Ohio EPA would create TMDLs for phosphorus, nitrogen, and other fertilizers in the Western Basin. Consequently, farmers may have to reduce the amounts they put on their fields, and/or implement additional measures to keep such inputs from running off into the water.
So, Ohio listed the Western Basin as impaired and is working on TMDLs for the area—the controversy is over, right? Not so fast. Lucas County, Ohio and the Environmental Law & Policy Center filed a lawsuit against the U.S. EPA that is still ongoing. (We last discussed this lawsuit here.) Basically, the plaintiffs in the suit are arguing that the U.S. EPA violated the CWA when it allowed the Ohio EPA to designate the Western Basin as impaired in 2018, but did not make the state develop TMDLs. Even though Ohio has since promised to implement TMDLs for the area, the outcome of the case will still weigh in on the crucial question of whether the U.S. EPA can make states create TMDLs for impaired waters under the CWA. In addition, the U.S. District Court case applies to Ohio’s 2018 impaired waters list, whereas Ohio EPA’s recent announcement concerns the 2020 list. Finally, it’s doubtful that environmental groups and others will stop their efforts just because Ohio has now promised to create TMDLs—it’s almost a certainty that the debate over pollution in the Western Basin and the best ways to remedy the problem will persist.
Lawsuits against the U.S. EPA and individual states seem to be a popular strategy to address water pollution problems. Last April, we wrote about Lucas County, Ohio and its suit against the EPA over water quality in the western basin of Lake Erie. Since that time, a federal judge has given another lawsuit concerning Lake Erie, filed by the Environmental Law & Policy Center (ELPC), the green light. But not all litigation concerns Ohio waters—recently, Maryland’s attorney general was directed to sue the EPA and Pennsylvania over water pollution in the Chesapeake Bay. Here are summaries of these two developments.
Environmental Law & Policy Center vs. EPA
We wrote about this lawsuit in February 2019, when ELPC had just filed its complaint. Essentially, ELPC contended that the U.S. EPA violated the Clean Water Act (CWA) when it allowed the Ohio EPA to designate Lake Erie as an impaired water body without instituting a Total Maximum Daily Load (TMDL) for pollutants going into the lake. You can get more details on this case by reading our blog post, here. Subsequently, EPA moved to dismiss the complaint. In addition, Lucas County joined ELPC as co-plaintiffs.
On November 13, 2019, the U.S. District Court for the Northern District of Ohio denied EPA’s motion to dismiss. Judge James Carr ruled that the case can go forward, finding that ELPC “plausibly alleges that Ohio EPA has clearly and unambiguously refused to develop a TMDL for Western Lake Erie.” This means that the action will go forward and that ELPC will be able to argue the case on the merits. You can read the ruling here.
Maryland to sue EPA, Pennsylvania
Meanwhile, in Maryland, the governor recently sent a letter to the state’s attorney general asking him to “commence litigation” against the EPA for “failing to enforce the Chesapeake Bay” TMDL, and against its upstream neighbor, Pennsylvania, for “repeatedly falling short of necessary pollution reduction goals.” At the center of this controversy is Pennsylvania’s draft Watershed Implementation Plan (WIP), which Maryland’s governor alleges will cause Pennsylvania to fall far behind its 2025 pollution reduction targets in addition to not meeting the TMDL. The governor asserts that by accepting Pennsylvania’s WIP with very few changes, the EPA is failing to enforce Pennsylvania’s compliance with the established TMDL.
It typically takes these types of lawsuits a while to work through the courts. The way the courts decide these cases will affect how TMDLs are viewed. Are TMDLs necessary under the CWA and enforceable, as the plaintiffs claim? Or are TMDLs simply soft goals and guidelines for reducing pollution that EPA does not necessarily have to enforce? Ultimately, outcomes of these cases could have implications for agricultural runoff, which can be a contributor to pollution in both Lake Erie and the Chesapeake Bay.
You’re never going to make everyone happy. This is especially true when it comes to the federal definition of “waters of the United States,” or WOTUS, under the Clean Water Act (CWA). The definition of WOTUS has changed over the years in order to adapt to numerous court decisions. The Obama administration’s 2015 rule has been litigated so much that a patchwork of enforcement has been created across the country, with some states falling under the 2015 rule and others falling under the previous iterations of the rule from 1986 and 1988. In fact, in New Mexico, parts of the state follow one rule and other parts follow the other. You can see the current state breakdown here.
To add even more chaos to all of this confusion, the Trump administration decided to repeal and replace Obama’s 2015 rule. In September, a rule was announced that would repeal the 2015 WOTUS rule and replace it with the 1986 and 1988 rule. This reversion would not be permanent; the 1986/1988 rule is simply a placeholder until the EPA and Army Corps of Engineers finalize a new WOTUS rule to replace it. The repeal is set to become effective in December. You can read our blog post on the repeal here.
Of course, there are those who are unhappy with the 1986/1988 rule being reinstated, even if only for a time. In October, two lawsuits were filed against the EPA and Army Corps of Engineers in federal district courts. In South Carolina, environmental groups sued because they feel that the 1986/1988 rules do not go far enough to protect waters. On the other hand, in the New Mexico Cattle Growers’ Association sued because they feel that returning to the 1986/1988 rules goes too far in regulating water. Below, we will briefly break down the arguments in each of these lawsuits.
South Carolina lawsuit
Following the October repeal announcement, environmental groups, including the South Carolina Coastal Conservation League and the Natural Resources Defense Council, sued the EPA and U.S. Army Corps of Engineers in the U.S. District Court for the District of South Carolina, Charleston Division, claiming that the repeal rulemaking was unlawful. In their complaint, the environmental groups make several arguments. They allege that the repeal rulemaking violates the Due Process Clause, Administrative Procedure Act (APA), and Supreme Court precedent. They say that the Due Process Clause has been violated because the rulemaking was not undertaken with an open mind, instead it was already pre-judged or all but decided before the process even started. They cite many violations of the APA—including failing to provide a “reasoned explanation” for the repeal, failing to discuss alternatives to repealing the rule, and failing to provide a meaningful opportunity for public comment on the rulemaking. Additionally, the environmental groups claim that the repeal “illegally departs from Justice Kennedy’s” opinion in the Rapanos case. Ultimately, Kennedy’s opinion in Rapanos is what led the EPA and Corps to scrap the 1986/1988 rule and create the 2015 rule to be more consistent with that opinion. Therefore, the environmental groups argue that going back to the 1986/1988 version would violate Kennedy’s “significant nexus” test for WOTUS, which invalidated the old version of the rule. In other words, the environmental groups believe that going back to the 1980s rules will result in less waters being protected.
New Mexico lawsuit
The New Mexico Cattle Growers’ Association (NMCGA) sued the EPA and the U.S. Army Corps of Engineers in the U.S. District Court for the District of New Mexico. In the complaint, NMCGA asks the court to enjoin, or stop the enforcement of the repeal rule, claiming that the rule violates the CWA, the Congressional Review Act, the Commerce Clause, the Due Process Clause, the Non-delegation Doctrine, and the Tenth Amendment. The NMCGA’s argument hinges on the definition of “navigable waters.” Under the CWA, “navigable waters” are the same as WOTUS. Like the environmental groups in South Carolina, NMCGA interprets the Rapanos decision as invalidating provisions of the 1986/1988 WOTUS rule. NMCGA, however, reads Rapanos as limiting “navigable waters” to only the waters that are actually navigable, or “navigable-in-fact.” Thus, unlike the environmental groups, NMCGA believes that both the 1986/1988 rule and the 2015 rule result in more waters being regulated than is allowed under the CWA and Supreme Court decisions.
Will the tide turn on WOTUS in the future?
Despite the Trump EPA’s repeal and upcoming replacement of the 2015 rule, the future of WOTUS is anything but certain. The lawsuits in South Carolina and New Mexico are just the latest proof of that. What is more, the lawsuits to enjoin the 2015 rule are still ongoing, and it is unclear whether they will be wiped out when the repeal rule becomes effective in December. When the replacement rule is finally published, there is no doubt even more lawsuits will follow. It’s also important to remember that we have an election next year, so if there’s a new administration, they’ll probably put their own stamp on WOTUS.