Clean Water Act
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.
Well, it’s been a while since we’ve written about the Waters of the United States (WOTUS), so everyone had to know we were overdue for WOTUS news!
On December 11, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the Trump Administration’s so-called “straightforward” new definition of WOTUS under the Clean Water Act (CWA). Publication of the proposed rule was delayed due to the federal government shutdown in December and January. The proposed rule was finally published in the Federal Register on February 14, 2019. Interested parties can comment on the proposed WOTUS rule until April 15, 2019. Information on how to comment can be found here, and the proposed rule in its entirety can be found here.
Out with the old WOTUS…
The new definition would replace the 2015 definition of WOTUS promulgated under the Obama Administration. The 2015 definition is codified at 33 CFR 328. The 2015 definition defined waters of the United States as:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purpose by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under the definition;
- Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
- Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.
The 2015 definition also noted that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet requirements of CWA…are not waters of the United States” (emphasis added).
...In with the new WOTUS
The Trump Administration’s new proposed definition of WOTUS would make significant changes to the definition listed above. Under the new proposed rule, section (a) of §328.3 would define waters of the United States as:
- Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide;
- Tributaries of waters identified in paragraph (a)(1) of this section;
- Ditches that satisfy any of the conditions identified in paragraph (a)(1) of this section, ditches constructed in a tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of the tributary definition, and ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition;
- Lakes and ponds that satisfy any of the conditions identified in paragraph (a)(1) of this section, lakes and ponds that contribute perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly through a water(s) identified in paragraphs (a)(2) through (6) of this section or through water features identified in paragraph (b) of this section so long as those water features convey perennial or intermittent flow downstream, and lakes and ponds that are flooded by a water identified in paragraphs (a)(1) through (5) of this section in a typical year;
- Impoundments of waters identified in paragraphs (a)(1) through (4) and (6) of this section; and
- Adjacent wetlands to waters identified in paragraphs (a) (1) through (5) of this section.
Every other type of water in this proposed definition relates back to the waters described in (1), which the EPA describes as “traditional navigable waters.” For example, tributaries that are WOTUS would be those bodies of water that empty into or connect to traditional navigable waters. Similarly, lakes and ponds are WOTUS under the definition if they are traditional navigable waters themselves, or if they flow regularly into traditional navigable waters. An EPA fact sheet, available here, is very helpful in understanding what is included under the proposed WOTUS definition. It describes the six proposed categories of WOTUS in layman’s terms, and provides examples of bodies of water that fall under each category.
The newly proposed rule also greatly expands the list of waters that are not waters of the United States in section (b):
- Waters or water features that are not identified in paragraphs (a) through (6) of this section;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland;
- Ditches that are not identified in paragraph (a)(3) of this section;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5) of this section;
- Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
- Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and
- Waste treatment systems.
Notable differences between 2015 rule and proposed rule
Just glancing at the two rules, it is obvious that there are major differences in how WOTUS is defined. EPA has a useful fact sheet (highly recommended reading) outlining the “key proposed changes” and how they compare to the 2015 WOTUS rule, as well as to the pre-2015 WOTUS rule. Overall, it appears that the number of water bodies considered WOTUS would decrease under the proposed rule. EPA argues that limiting the number of waters classified as WOTUS would give more power to the states to regulate waters as they see fit.
One major change is that under the proposed rule, tributaries that are “ephemeral” (meaning they’re not around for a great deal of time, and/or may be there because of rainfall or snowmelt, etc.), are not considered to be WOTUS. Similarly, the number of ditches considered to be WOTUS would decrease under the new rule. Upland ditches and ephemeral ditches would no longer fall under WOTUS. The number of wetlands considered WOTUS would also take a hit under the new rule. Wetlands would either have to “abut” other WOTUS or “have a direct hydrological surface connection” to WOTUS in a “typical year” to fall under the new definition. Furthermore, wetlands would no longer be considered to be “adjacent,” and therefore connected to WOTUS, if they are “physically separated from jurisdictional waters by a berm, dike, or other barrier.” Finally, you guessed it— the number of lakes and ponds considered WOTUS would also be reduced, since they would no longer connect through “adjacent” wetlands.
It’s important to remember that this new WOTUS rule is not currently effective—they are just proposed rules, open to public comment. In the meantime, due to litigation, what qualifies as WOTUS depends on which state you live in, as we discussed in Harvest posts here and here. EPA has a map depicting which definition of WOTUS currently applies where—in some states, the 2015 rule applies, and in others the pre-2015 rule applies. Obama’s 2015 rule applies in Ohio at this time. If the proposed rule makes it through the rulemaking process and goes into effect, it will replace the 2015 and pre-2015 rules, and barring any other lawsuits, will apply nationwide. The ultimate implementation of this rule is anything but certain; changes and challenges to the rule are likely to occur. The Ag Law Blog will keep readers updated on all the WOTUS discussion yet to come.
We can’t say that Lake Erie is back in the news, because lately it hasn’t left the news. However, there is a new lawsuit in federal court that seeks further action from either the U.S. Environmental Protection Agency (“EPA”) or the Ohio EPA regarding Lake Erie water quality. Filed on February 7, 2019 by the Environmental Law & Policy Center (“ELPC”) and the Toledo-based Advocates for a Clean Lake Erie, this new lawsuit alleges that the U.S. EPA improperly signed off on action taken by the Ohio EPA to designate Lake Erie as an impaired water body without implementing a Total Maximum Daily Load (“TMDL”) to restrict discharges such as agricultural runoff. The plaintiffs weren’t necessarily unhappy about the designation, but they were not happy about the lack of a TMDL.
Designating a waterway as impaired indicates low water quality, and triggers requirements to take action to improve water quality. A state must classify its waterways, and that classification guides the selection of which types of regulations to impose and the priority of fixing a waterway. The Ohio EPA’s designation of Lake Erie as impaired under the federal Clean Water Act was motivated by a previous lawsuit brought by the ELPC. In that lawsuit, a federal court ordered the U.S. EPA to review the Ohio EPA’s compliance with the federal Clean Water Act, which is something the plaintiffs in this new case want the court to order again. That case remains pending, and is cited as Environmental Law and Policy Center v. U.S. EPA, Case No. 17-cv-1514 (N.D. Ohio).
The plaintiffs allege that the new designation alone is not enough, and that the Ohio EPA must take more action. The complaint in the new lawsuit alleges that the Ohio EPA must establish a TMDL for western Lake Erie. Under the federal Clean Water Act, TMDLs identify the maximum amounts of a pollutant that a body of water can handle in order to meet water quality standards. The U.S. EPA describes these as a “starting point or planning tool for restoring water quality” that states often use as targets when crafting comprehensive plans to attain water quality. The complaint alleges that the Ohio EPA must prioritize creating a TMDL for western Lake Erie, but the Ohio EPA has said that it hopes to pursue an alternative approach to water quality attainment without the need for a TMDL. The plaintiffs do not believe that this is enough.
But why then is the new lawsuit against the U.S. EPA, and not the Ohio EPA? Congress granted the U.S. EPA oversight over water quality for federally navigable waters, or Waters of the United States, which include Lake Erie. The complaint alleges that by approving Ohio’s designation of Lake Erie without a plan and timeline to reach water quality standards, the U.S. EPA made an improper and arbitrary decision under the federal Clean Water Act. The plaintiffs want the U.S. EPA to rescind its approval of the Ohio EPA’s action. After this, the U.S. EPA would have to require the Ohio EPA to submit a new binding plan to bring Lake Erie into attainment with water quality standards, or the U.S. EPA can decide that Ohio has refused to submit a plan and exercise its authority to create its own plan for Ohio. The complaint also seeks an award of attorney’s fees and costs to cover the expenses incurred by the plaintiffs in bringing the lawsuit.
Click HERE to view the complaint. The case is cited as Environmental Law & Policy Center v. U.S. EPA, Case No. 3:19-cv-00295 (N.D. Ohio). Stay tuned to the Ag Law Blog for more updates on litigation involving Lake Erie.
The U.S. Supreme Court ruled earlier this week in National Association of Manufacturers v. Department of Defense that a federal district court is the proper forum for challenges to the substance of the “Waters of the United States” (WOTUS) rule. The holding brings clarification for parties raising similar types of challenges under the federal Clean Water Act, who often filed cases in both the district and appellate courts due to confusion over which court has jurisdiction over the cases. Litigants can now be sure that the case should originate with the federal district court, which provides greater access for similar challenges but could create more inconsistent rulings around the country. The court’s decision arrives at an odd time, with the evolving WOTUS landscape now focused on formulation of a new WOTUS rule to replace the rule that is under fire.
The court’s reasoning
The Supreme Court’s decision in this case is not surprising, a result of attention to the express language of the Clean Water Act rather than to several interpretations advanced by the government. The Clean Water Act places authority over Clean Water Act challenges in the federal district courts, with seven exceptions that are to be heard by the appellate courts. The federal government argued that two of those exceptions applied to its drafting of the WOTUS rule. The court disagreed, concluding that WOTUS does not establish an “effluent limitation” nor does it result in the issuance or denial of a permit as argued by the government. The court recognized that it would likely be more efficient and uniform for such challenges to be heard by an appellate court, but that would require a rewriting of the statute.
WOTUS uncertainty remains
The Supreme Court sent the case back to the Sixth Circuit Court of Appeals with an order to dismiss the WOTUS petitions before that court, which consisted of all appellate cases challenging the rule that were previously transferred to the Sixth Circuit by the Judicial Panel on Multidistrict Litigation. Note that the Sixth Circuit had issued a nationwide stay of the WOTUS rule in 2015 pending determination of whether the rule was a valid exercise of agency authority. That stay will presumably disappear with the Sixth Circuit’s dismissal of the case, but some claim that the Sixth Circuit could seek to continue to enforce the nationwide stay. A federal district court in North Dakota had previously issued an injunction against the WOTUS rule in North Dakota and a dozen other states, so that injunction would continue to prevent implementation of the rule in those states if the Sixth Circuit removes its stay.
Further complicating the status of the WOTUS rule are the actions taken by the Trump administration, which issued a proposed rule last November to delay the rule’s effective date to 2020 and a second proposal last February to replace WOTUS with the rule that was in place previously while the EPA develops a new definition of WOTUS. The EPA has not finalized either of those rules. The federal district courts with WOTUS cases currently before them could choose to stay their cases pending the current administration’s rulemaking process. Alternatively, one of the federal district courts could issue a nationwide injunction against the rule.
Consistent with its history, WOTUS remains unclear. Agricultural interests will have to continue to wait and see what happens next.
Written by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The Board of Trustees of the Des Moines Water Works (DMWW) brought a lawsuit against thirteen Iowa drainage districts. DMWW is the biggest water provider in Iowa, serving the largest city, Des Moines, and the surrounding area. Drainage districts were first created in Iowa in the 1800s to drain wetlands and allow for agriculture in those areas. In Iowa, the counties are in charge of drainage districts. Individual landowners can tile their land so that it drains water to the ditches, pipes, etc. that make up the counties’ drainage districts. Eventually, that water ends up in Iowa’s rivers. The thirteen drainage districts being sued by DMWW are located in the Raccoon River watershed in Buena Vista, Sac, and Calhoun counties. DMWW is located downstream from the drainage districts in question.
Background of the Lawsuit
On March 16, 2015, the Board of Trustees for the DMWW filed a complaint against the thirteen drainage districts in the U.S. District Court for the Northern District of Iowa, Western Division. DMWW alleged that the drainage districts did not act in accordance with the federal Clean Water Act (CWA) and provisions of the Iowa Code because they did not secure the applicable permits to discharge nitrates into the Raccoon River. In order to serve its customers, DMWW uses the Raccoon River as part of its water supply.
DMWW has to meet maximum contaminant levels prescribed under the federal Safe Drinking Water Act. Nitrate is a contaminant with a maximum allowable level of 10 mg/L. In its complaint, DMWW cited record levels of nitrate in water from the Raccoon River watershed in recent years. DMWW alleged that the nitrate problem is exacerbated by the “artificial subsurface drainage system infrastructure…created, managed, maintained, owned and operated by” the thirteen drainage districts. DMWW alleged that the drainage district infrastructure—“pipes, ditches, and other conduits”—are point sources. DMWW points to agriculture—row crops, livestock production, and spreading of manure, as a major source of nitrate pollution.
DMWW also cited a number of costs associated with dealing with nitrates, including the construction of facilities that remove nitrates, the operation of those facilities, and the cost associated with acquiring permits to discharge the removed waste. In their complaint, they generally asked the court to make the drainage districts reimburse them for their cleanup costs, and to make the drainage districts stop discharging pollutants without permits.
All together, DMWW filed ten counts against the drainage districts. In addition to their claim that the drainage districts had violated the CWA and similarly, Iowa’s Chapter 455B, DMWW also alleged that the continued nitrate pollution violated a number of other state and federal laws. DMWW maintained that the pollution was a public, statutory, and private nuisance, trespassing, negligence, a taking without just compensation, and a violation of due process and equal protection under the U.S. and Iowa Constitutions. Finally, DMWW sought injunctive relief from the court to enjoin the drainage districts to lessen the amount of nitrates in the water. In many of the counts, DMWW asked the court for damages to reimburse them for their costs of dealing with the pollution.
On May 22, 2015, the defendants, the thirteen drainage districts, filed their amended answer with the court. On January 11, 2016, the district court filed an order certifying questions to the Iowa Supreme Court. In other words, the district court judge submitted four questions of state law to the Iowa Supreme Court to be answered before commencing the federal trial. The idea behind this move was that the highest court in Iowa would be better equipped to answer questions of state law than the district court.
Iowa Supreme Court Decision
The Iowa Supreme Court filed its opinion containing the answers to the four state law questions on January 27, 2017. All of the questions were decided in favor of the drainage districts. The court answered two questions related to whether the drainage districts had unqualified immunity (complete protection) from the money damages and equitable remedies (actions ordered by the court to be taken or avoided in order to make amends for the harm caused) requested by DMWW. Both were answered in the affirmative—the court said that Iowa legislation and court decisions have, throughout history, given drainage districts immunity. Iowa law has long found the service drainage districts provide—draining swampy land so that it could be farmed—to be of great value to the citizens of the state. To that end, the law has been “liberally construed” to promote the actions of drainage districts. What is more, judicial precedent in the state has repeatedly found that drainage districts are not entities that can be sued for money damages because they are not corporations, and they have such a limited purpose—to drain land and provide upkeep for that drainage. The law has further prohibited receiving injunctive relief (obtaining a court order to require an action to be taken or stopped), from drainage districts. Instead, the only remedy available to those “claim[ing] that a drainage district is violating a duty imposed by an Iowa statute” is mandamus. Mandamus allows the court to compel a party to carry out actions that are required by the law. In this case, those requirements would be draining land and the upkeep of the drainage system.
The second two questions considered by the court dealt with the Iowa Constitution. The court determined whether or not DMWW could claim the constitutional protections of due process, equal protection, and takings. They also answered whether DMWW’s property interest in the water could even be “the subject of a claim under...[the] takings clause.” The court answered “no” to both questions, and therefore against DMWW. Their reasoning was that both DMWW and the drainage districts are subdivisions of state government, and based on numerous decisions in Iowa courts, “one subdivision of state government cannot sue another…under these clauses.” Additionally, the court found that “political subdivisions, as creatures of statute, cannot sue to challenge the constitutionality of state statutes.” Consequently, they reasoned that the pollution of the water and the resulting need to remove that pollution did “not amount to a constitutional violation” under Iowa law. The court also found that since the water in question was not private property, the takings claim was not valid. A takings claim only applies to when the government takes private property. What is more, the court added that regardless of its status as a public or private body, DMWW was not actually deprived of any property—they still had the ability to use the water. Therefore, the Iowa Supreme Court answered all four state law questions in the drainage districts’ favor, and against DMWW.
The Iowa Supreme Court found that the questions of state law favored the drainage districts, but that is not necessarily the end of this lawsuit. Now that the questions of state law are answered, the U.S. District Court for the Northern District of Iowa, Western Division, can decide the questions of federal law. If any of the numerous motions for summary judgment are not granted to the drainage districts, a trial to decide the remaining questions is set for June 26, 2017. The questions left for the district court to decide include a number of U.S. Constitutional issues.
One of these issues is whether the drainage districts’ discharge of nitrates into the water constitutes a “taking” of DMWW’s private property for a public use under the Fifth and Fourteenth Amendments. Another issue is whether the drainage districts’ state-given immunity infringes upon DMWW’s constitutional rights of due process, equal protection, and just compensation. An important federal law question that also remains to be decided is whether the drainage districts are “point sources” that require a permit to discharge pollutants under the CWA.
How will the outcome affect other states?
Either outcome in this lawsuit will have implications for the rest of the country. For example, if the district court sides with DMWW on all of the questions, it could open the floodgates to potential lawsuits against drainage districts and other similar entities around the country for polluting water. Municipal and other users of the water could assert an infringement of their constitutional rights, including taking without just compensation. Furthermore, if drainage districts are found to be “point sources,” it could mean greater costs of permitting and cleanup for drainage districts and other state drainage entities. Those costs and additional regulations could be passed onto farmers within the watershed. As a result, farmers and water suppliers around the country will closely follow the district court’s decisions on the remaining questions in the case.
All of the court documents and decisions concerning this lawsuit, as well as additional articles and blog posts on the topic can be found here. Additional reading on the subject from the Des Moines Register can be found here and here.