When the U.S. EPA approved the seven-year renewal registration for Corteva’s Enlist One and Enlist Duo on January 12, 2022, it also prohibited use of the herbicide in 217 counties across the country. Twelve Ohio counties were on that list, preventing farmers in Athens, Butler, Fairfield, Guernsey, Hamilton, Hocking, Morgan, Muskingum, Noble, Perry, Vinton, and Washington counties from using the herbicides. Welcome news for those farmers came on Tuesday, when the EPA announced that it is removing the restricted use for all Ohio counties.
The prohibition against using Enlist Duo’s use was because Corteva did not submit its use in all U.S. counties in the reregistration, many of which had endangered species and critical habitat that could be impacted by the herbicides. The twelve Ohio counties that were not submitted for use by Corteva are home to the American Burying Beetle, which is on the Endangered Species list. But in February, Corteva submitted a label amendment that proposed use of Enlist One and Enlist Duo in 128 of the previously restricted counties, including Ohio’s twelve counties.
Upon receiving Corteva’s amendment, federal law requires EPA to complete an “effects determination” to assess potential effects on the endangered species in the previously restricted counties. The assessment included reviewing updated range maps for the endangered species and their habitats that were provided by the U.S. Fish and Wildlife Service. Range maps help identify the overlap between the American Burying Beetle’s location and growing areas for corn, soybeans, and cotton where Enlist might be applied. Based on the maps, the agency determined that the beetle was not present in 10 of the previously restricted counties and had less than a 1% overlap with crop areas in another 118 counties.
EPA also examined whether there would be direct or indirect effects on other listed endangered species or habitat in those counties. The black-footed ferret was the only specifies identified in field areas in the 128 counties, and fifteen other listed specifies and three critical habitats were determined to exist off of the field areas. But the EPA found that the Enlist label restrictions would address any concerns with these additional species and habitats.
After completing its effects determination and review of the amendment, the EPA concluded that “the use of these products—with the existing label requirements in place to mitigate spray drift and pesticide runoff—will not likely jeopardize the American Burying Beetle or other listed species and their critical habitats in these counties.” Similarly, EPA determined that six Minnesota counties that are home to the endangered Eastern Massasauga rattlesnake were also removed from the prohibited list and approved for Enlist use.
EPA noted the importance of following the label restrictions for the herbicides, particularly in areas where endangered species reside. The new label approved by the EPA in January contains changes to the previous label. According to OSU weed scientist Mark Loux, those changes include a revised application cutoff for soybeans, “through R1” that replaces “up to R2” on previous labels, and the addition of a slew of spray nozzles to the approved nozzle list. Enlist users should take care to review these new provisions. As required by EPA, Corteva provides educational tools on using Enlist, available at https://www.enlist.com/en/enlist-360-training.html.
If you’re interested in reading more about the EPA’s registration review on Enlist One and Enlist Duo, the agency’s docket on the registration is available at https://www.regulations.gov/docket/EPA-HQ-OPP-2021-0957/document. The amendment letter for the recent removal of prohibitions on certain counties is at https://www.regulations.gov/document/EPA-HQ-OPP-2021-0957-0020.
Did you know that female turkeys can lay a fertilized egg without mating? This process is called parthenogenesis, a type of asexual reproduction that can also occur in other types of animals including invertebrates, fish, and lizards. In turkeys, this process always produces a male chick. The likelihood of an embryo from parthenogenesis surviving to chick-hood is small, but possible.
In this edition of the Ag Law Harvest and in the spirit of Thanksgiving, we are thankful for the opportunity to present to you the newly proposed definition of “waters of the United States”, Kansas’s battle to protect agricultural facilities, and food labeling cases from across the country.
EPA and Army Corps of Engineers propose rule to establish the definition of “waters of the United States.” The EPA and Army Corps of Engineers announced a proposed rule to return the definition of “waters of the United States” (“WOTUS”) to the pre-2015 definition with a few updates to reflect Supreme Court decisions. In 2020, the Navigable Waters Protection Rule went into effect and interpreted WOTUS to include: “(1) territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than jurisdictional wetlands).” On January 20, 2021, President Biden signed Executive Order 13990 directing all executive agencies to review and address any federal regulations that went into effect during the previous administration. After reviewing the Trump Administration’s Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections. The new rule proposed by the agencies seeks to interpret WOTUS to include: (1) traditional navigable waters; (2) interstate waters; (3) the territorial seas and their adjacent wetlands; (4) most impoundments of WOTUS; (5) tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard of the significant nexus standard; (6) wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and (7) “other waters” that meet either the relatively permanent standard or the significant nexus standard. The agencies will be taking comment on the proposed rule for 60 days once the rule is published in the Federal Register.
Kansas Attorney General asks Supreme Court to review Kansas “Ag Gag” Law. Derek Schmidt, Attorney General of Kansas, has asked the United States Supreme Court to review the Kansas Farm Animal and Field Crop and Research Facilities Protection Act (the “Act”) which criminalizes the unauthorized access to agricultural facilities without consent of the owner of the facility with the intent to damage the business of the facility. Under the Act, consent is not effective if it is “[i]nduced by force, fraud, deception, duress or threat.” Earlier this year, the 10th Circuit Court of Appeals found the Kansas law to be unconstitutional by violating the free speech clause in the First Amendment of the United States Constitution and prohibited Kansas from enforcing the Act. Now, Derek Schmidt has petitioned the Supreme Court to review the Kansas law arguing that the Act does not violate the First Amendment because the Act regulates conduct not speech. The Attorney General goes on to argue that even if trespass by deception were to be considered a form of speech, it is a form of speech that is not protected by the First Amendment. The Attorney General reasoned that the Act protects a private property owner’s right to exclude and that the First Amendment does not provide a license to violate a person’s property rights.
Oklahoma’s meat labeling law on trial. Earlier this month, the Plant Based Foods Association and the Tofurky Company (“Plaintiffs”) filed an amended complaint challenging Oklahoma’s Meat Consumer Protection Act (the “Act”) alleging that the Act violates the dormant commerce clause, the due process clause, and the supremacy clause of the United States Constitution. Plaintiffs allege that the Oklahoma law “institutes a protectionist trade barrier” that is contrary to and preempted by federal law. According to Plaintiffs, the Act “forbids plant-based meat producers from using meat terms unless they include a disclaimer on their product labels in the same type size and prominence to the ‘name of the product’ that their plant-based products are not actually meat derived from animals.” Plaintiffs argue that the Oklahoma law would require plant-based meat producers to develop Oklahoma specific labels or abandon the Oklahoma market which is essentially interfering with interstate commerce and in violation of established federal law. This case is set for trial in 2022. But, this is not the first time the Oklahoma law has been challenged on constitutional grounds. Plant Based Foods Association and Upton’s Naturals Company also filed suit alleging the Oklahoma law violated the First and Fourteenth Amendments of the Constitution. However, a Federal District Court in Oklahoma denied an injunction to prevent Oklahoma from enforcing the law. The court found that the disclosure requirement in the Act is reasonably related to Oklahoma’s interest in preventing the confusion or deception of consumers. The court reasoned that the commercial speech at issue could potentially be misleading to reasonable consumer. The court argued that “the possibility of deception flowing from the use of meat-related terms for the plant-based products is self-evident from the natural inference a consumer would draw from the meat-related terms used.” This not the end of the battle for the Oklahoma law, there will likely be appeals to higher courts to help settle the dispute.
Pepperidge Farm sued over “Golden Butter” cracker label. Hawa Kamara decided to file a lawsuit against Pepperidge Farm, Inc. after purchasing “Golden Butter” crackers at a local Target store in New York. According to the ingredients list attached to Kamara’s complaint, the crackers were made with butter but also included vegetable oils. Kamara asserted that the presence of vegetable oils makes the “Golden Butter” packaging misleading and/or deceptive because a reasonable consumer would conclude the crackers were “all or predominantly made with butter.” A Federal District Court in New York, however, did not find the packaging misleading or deceptive. The court reasoned that “the packaging accurately indicated that the product contained butter, and the ingredients list confirmed that butter predominated over other oils and fats.” Further, the court argued that a reasonable consumer could believe the “Golden Butter” labeling described the product’s flavor and not the ingredient proportions. Ultimately, the court decided to dismiss the case against Pepperidge Farm because Kamara’s complaint did not plausibly allege that the “Golden Butter” packaging materially misrepresented the ingredients in the crackers.
Thank you for reading and we hope that everyone has a happy and safe Thanksgiving!!
Did you know there is a sea creature capable of producing bubbles that are louder than a gun and hotter than lava? Pistol shrimp, also known as snapping shrimp, are the super-powered creatures under the sea that no one talks about. These bite-sized crustaceans have a special claw that allows them to form the deadly bubble to shoot at unsuspecting victims or enemies. The sound of the pop of the bubble has been measured at 218 decibels, which is louder than a speeding bullet, and the heat generated by the bubble has been measured to reach almost 8,000 degrees Fahrenheit, making the bubble four-times hotter than lava. Like the pistol shrimp, we have brought you the heat in this edition of the Ag Law Harvest.
This Ag Law Harvest brings you agricultural and resource issues from across the country that have created their own noise, including animal liability laws, the reversal of relaxed environmental regulations, and requiring federal agencies to consider the impact of future agency activities on the environment.
Farmers and ranchers begin to enjoy new protections under Texas animal liability laws. Texas House Bill 365, which expands protections under Texas’ Farm Animal Liability Act (“FALA”), went into effect on September 1, 2021. House Bill 365 was passed in response to a 2020 Texas Supreme Court ruling which found that farmers and ranchers were not protected under FALA and could be liable for injuries that occur on working farms and ranches. The new law prevents an injured individual from holding a farmer or rancher liable for their injuries, so long as the injuries are a result of the inherent risks of being involved in routine/customary activities on a farm or ranch.
Federal Court revokes Trump Navigable Waters Protection Rule. The U.S. District Court in Arizona recently ruled that the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) must be vacated because the rule contains serious errors and the Trump Administration’s rule could do more harm than good to the nation’s waters if left alone. Opponents of the NWPR argued that rule disregards established science and the advice of the EPA’s own experts in order to redefine the phrase “waters of the United States.” Specifically, opponents to the Trump Administration’s rule voiced their concern that the NWPR failed to take into consideration the effect ephemeral waters would have on traditional navigable waters. And the Court agreed. The Court found that the NWPR must be vacated because the rule “could result in possible environmental harm.” The Court also reasoned that because the EPA is likely to alter the definition of “waters of the United States” under the Biden Administration, the NWPR should not remain in place. Proponents of the NWPR claim that the Court’s ruling creates uncertainty for farmers and ranchers across the country.
EPA revokes Minnesota attempts to relax feedlot regulations. Earlier this year, Minnesota passed a law that relaxed the requirements to obtain a “Feedlot General Permit.” The Feedlot General Permit is usually only for Minnesota’s largest feedlots, some 1,200 farms. The permits are required under federal clean water laws but enforced by the state. Prior to the law being passed, the Minnesota Pollution Control Agency required those farmers that applied manure during the first two weeks of October to implement one of four approved nitrogen management practices. However, Minnesota lawmakers wanted to relax those regulations by prohibiting regulatory authorities from requiring farmers to take new steps to limit nitrogen runoff during October. But, the EPA “vetoed” Minnesota’s relaxed regulations, which it can do when a state’s law conflicts with a federal law or regulation. The EPA sent a letter notifying Minnesota that the relaxed regulations would be inconsistent with the Clean Water Act (“CWA”) and would result in an improper modification to the Minnesota Pollution Control Agency’s authority to administer the National Pollutant Discharge Elimination System (“NPDES”), which administers the feedlot permits. Proponents of the new Minnesota law claimed that the existing permits were not flexible enough and that regulatory authorities focused on an arbitrary calendar date rather than focusing on natural conditions when limiting a farmer’s ability to spread manure. Opponents to Minnesota’s law argue that the EPA did the right thing by using “common sense improvements to prevent manure runoff.”
Department of Homeland Security found to have violated environmental regulations for its border-enforcement activity. The Center for Biological Diversity and U.S. Congressman Raul Grijalva (the “Plaintiffs”) filed suit in federal court claiming that the Department of Homeland Security and its agency, Customs and Border Protection, (the “Defendants”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). Plaintiffs alleged that Defendants failed to update their programmatic environmental analysis for border-enforcement activity since 2001, as required by NEPA, and that Defendants failed to consult with the U.S. Fish and Wildlife Service (“FWS”) about the impacts of border-enforcement activity on threatened or endangered species, as required by the ESA. In its opinion, the U.S. District Court of Arizona ruled that the Defendants did violate NEPA but not the ESA. The Court found that NEPA has two primary goals: (1) require every federal agency to consider the environmental impact of the agency’s actions; and (2) require the federal agency to inform the public that it has considered the environmental impact. NEPA also requires a federal agency to supplement its environmental impact statement if there is ongoing action being taken by the federal agency. The Defendants claimed they did not violate NEPA because they conducted and provided site-specific or project-specific environmental assessments. However, the Court ruled that although the Defendants did conduct project-specific analysis, they are required to supplement their environmental impact statement for the activity/program, as a whole, unless they legally opt out of the supplementation, which Defendants did not do until 2019. Therefore, the Court found the Defendants did violate NEPA prior to 2019. The Court also ruled that the ESA does not require federal agencies to consult with the FWS on a broad and continuing basis. The Court felt that the Defendants had met any requirements under the ESA by meeting with the FWS for any site-specific or project-specific analysis. Although the Court found that Defendants had violated NEPA, the Court concluded that Plaintiffs had waited too long to bring the lawsuit and that no remedy was available to Plaintiffs for the previous procedural violations of NEPA.
USDA announces changes to CFAP 2. The USDA’s Farm Service Agency announced changes to the Coronavirus Food Assistance Program 2 (“CFAP 2”). As a result of the changes, contract poultry, egg, and livestock producers, and producers of “sales-based commodities” – mostly specialty crops – can modify existing or file new applications by October 12, 2021, using either 2018 or 2019 to measure lost revenue in 2020. The changes were published on August 27, 2021, and can be found here.
Did you know that the “wise old owl” saying is a myth? Generally speaking, owls are no wiser than other birds of prey. In fact, other bird species like crows and parrots have shown greater cognitive abilities than the owl. An owl’s anatomy also helps dispel the myth because most of the space on an owl’s head is occupied by their large eyes, leaving little room for a brain.
This week’s Ag Law Harvest brings you EPA bans, Ohio case law, USDA announcements, and federal case law which could make your head spin almost as far as an owl’s.
EPA banning use of chlorpyrifos on food crops. The EPA announced that it will stop the use of the pesticide chlorpyrifos on all food to better protect producers and consumers. In its final rule released on Wednesday, the EPA is revoking all “tolerances” for chlorpyrifos. Additionally, the EPA will issue a Notice of Intent to Cancel under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) to cancel all registered food uses of chlorpyrifos. Chlorpyrifos is an insecticide used for a variety of agricultural uses, including soybeans, fruit and nut trees, broccoli, cauliflower, and other row crops, in addition to non-food uses. The EPA’s announcement comes in response to the Ninth Circuit’s order directing the EPA to issue a final rule in response to a petition filed by opponents to the use of chlorpyrifos. The petition requested that the EPA revoke all chlorpyrifos tolerances because those tolerances were not safe, particularly because of the potential negative effects the insecticide has on children. For more information about chlorpyrifos and the EPA’s final rule, visit the EPA’s website.
Trusts aren’t to be used as shields. An Ohio appeals court recently reinforced the concept that under Ohio law, trusts are not be used as a way to shield a person’s assets from creditors. Recently, a plaintiff filed a lawsuit against a bank alleging breach of contract and conversion, among other things. Plaintiff, an attorney and real estate developer, claimed that the bank removed money from his personal account and a trust account in violation of Ohio law and the terms of the loan agreement between the parties. Prior to the lawsuit, plaintiff established a revocable trust for estate planning purposes and to acquire and develop real estate. This dispute arose from a $200,000 loan from the bank to the plaintiff to help establish a restaurant. A provision of the loan agreement, known as the “Right to Setoff” provision, allowed the bank to “setoff” or effectively garnish all accounts the plaintiff had with the bank. The setoff provision explicitly prohibited any setoff from any IRA or trust accounts “for which setoff would be prohibited by law.” Plaintiff made all monthly payments but failed to make the final balloon payment on the loan. Plaintiff argued that the bank broke the loan contract and violated Ohio law by taking funds from the trust account to pay off the remaining balance of the loan. The court disagreed. The court noted that under Ohio law, a settlor’s property in a revocable trust is subject to the claims of the settlor’s creditors. A settlor is a person who creates or contributes property to a trust. In this case, plaintiff was the creator, settlor, and sole beneficiary of the revocable trust. Because of that, the court concluded the bank did not violate Ohio law when using the trust account to setoff the balance of the loan. Additionally, the court found that the bank did not violate the terms of the loan agreement because a setoff from the trust account was not prohibited by law. The court noted that Ohio law did not intend to allow a settlor who is also a beneficiary of the trust to use a trust as a “shield” against creditors. Although trusts can be a useful estate planning tool, there are limits to what a trust can do, as evidenced by this case.
Renewable fuel supporters file appeal on E15 summer sales. Corn farmers have joined forces with the biofuel industry (“Petitioners”) to ask the D.C. Circuit Court of Appeals for a new hearing on a ruling that struck down the EPA’s 2019 decision to allow year-round E15 sales. Earlier this year, the same D.C. Circuit Court of Appeals issued an opinion that ruled the legislative text in the law supporting the biofuel mandate does not support the Trump administration’s regulatory waiver that allowed E15 to be sold during the summer months. In their petition, Petitioners argue that the D.C. Circuit Court made “significant legal errors.” Petitioners contend that the court should rehear the case because the intent behind the nation’s biofuel mandate is better served by the sale of E15 through the summer months because it is less volatile, has less evaporative emissions, and is overall better for the environment than other fuel sources. Petitioners also believe the court’s original decision deprives American drivers the choice of lower carbon emitting options at the gas pump.
Monsanto asks Supreme Court to review Ninth Circuit’s Roundup Decision. In its petition to the Supreme Court of the United States Monsanto Company (“Monsanto”) asked the Supreme Court to review the $25 million decision rendered by the Ninth Circuit Court of Appeals. In that decision, the Ninth Circuit held that the Federal Insecticide Fungicide and Rodenticide Act (“FIFRA”) did not preempt, or otherwise prevent, the plaintiff from raising California failure-to-warn claims on Roundup products and allowed plaintiff to introduce expert testimony that glyphosate causes cancer in humans. In trial, the plaintiff argued that Monsanto violated California’s labeling requirements by not including a warning on the Roundup label that glyphosate, which is found in Roundup, causes cancer. Monsanto argues that FIFRA expressly preempts any state law that imposes a different labeling or packaging requirement. Under FIFRA, Monsanto argues that the EPA did not require Monsanto to include a cancer warning on its Roundup label. Therefore, Monsanto maintains, that because California law differed from FIFRA, Monsanto was not required to follow California law when it came to labeling its Roundup product. Secondly, the Ninth Circuit allowed plaintiff to present expert evidence that glyphosate could cause non-Hodgkin’s lymphoma in the general public and that glyphosate caused the plaintiff’s lymphoma. Monsanto contends that the lower courts have distorted established precedent by allowing the expert testimony because the testimony is not based on generally accepted scientific principles and the scientific community has consistently found that glyphosate does not cause cancer in humans.
USDA working to protect nation’s dairy industry. The USDA’s Agricultural Marketing Service (“AMS”) has struck a deal with the European Union (“EU”) to satisfy the EU’s new import requirements on U.S. dairy. The EU will require new health certificates for U.S. dairy products exported to the EU to verify that the U.S. milk used for products exported to the EU is sourced from establishments regulated under the Grade “A” Pasteurized Milk Ordinance or the USDA AMS Milk for Manufacturing Purposes. Officials representing the U.S. Dairy Export Council and International Dairy Foods Association claim that the deal will allow U.S. producers to comply with the EU’s mandates while also satisfying the concerns within the American dairy industry. The deal pushes back the EU’s deadline for new health certificates to January 15, 2022, to allow U.S. producers and exporters enough time to bring their products into compliance. The USDA also announcedthat it is providing around $350 million to compensate dairy producers who lost revenue because of market disruptions due to the COVID-19 pandemic and a change to the federal pricing formula under the 2018 farm bill. Additional details are available at the AMS Dairy Program website.
Tale as old as time. An Ohio appeals court recently decided a dispute between neighbors about a driveway easement. The driveway in dispute is shared by both neighbors to access their detached garages. Defendants used the driveway to access their garage and then the driveway extends past the Defendants’ garage onto Plaintiff’s property and ends at Plaintiff’s garage. The dispute arose after Defendants built a parking pad behind their garage and used parts of the driveway they never used before to access the parking pad. The original easement to the driveway was granted by very broad and general language in a 1918 deed, when the property was divided into two separate parcels. In 1997, a Perpetual Easement and Maintenance Agreement (“Agreement”) was entered into by the two previous property owners. The Agreement was much more specific than the 1918 deed and specifically showed how far the easement ran and what portions of the driveway could be used by both parties. The 1997 Agreement did not allow for Defendants to use the portion of the driveway necessary to access their parking pad. Plaintiffs argue that the 1997 Agreement controls the extent of the easement, whereas Defendants argue that the broad general language in the 1918 deed grants them authority to use the whole length of the driveway. The Court found the more specific 1997 Agreement to be controlling and ruled in favor of the Plaintiffs. The Court reasoned that the 1918 deed creates an ambiguity as to the extent of the easement and there is no way of knowing what the original driveway looked like or how it was used. The Court concluded that the 1997 Agreement does not contradict or invalidate the 1918 deed, rather the 1997 Agreement puts specific parameters on the existing easement and does not violate any Ohio law. The Defendants were found liable for trespass onto the Plaintiffs’ property and is expected to pay $27,500 in damages. The lesson to be learned from all of this? Make sure your easements are as specific and detailed as possible to ensure that all parties are in compliance with the law.
Did you know that a housefly buzzes in the key of F? Neither did I, but I think the musical stylings of the Cicada have stolen the show this summer.
Aside from Mother Nature’s orchestra, federal agencies have also been abuzz as they continue to review the prior administration’s agencies’ rules and regulations. This week’s Ag Law Harvest is heavily focused on federal agency announcements that may lead to rule changes that affect you, your farm or business, or your family.
USDA issues administrative complaint against Ohio company. The USDA’s Agricultural Marketing Service (“AMS”) issued an administrative complaint on May 4, 2021, against Barnesville Livestock LLC (“Barnesville”) and an Ohio resident for allegedly violating the Packers and Stockyards Act (“P&S Act”). An investigation conducted by the AMS revealed that the Ohio auction company failed to properly maintain its custodial account resulting in shortages of $49,059 on July 31, 2019, $123,571 on November 29, 2019, and $54,519 on December 31, 2019. Companies like Barnesville are required to keep a custodial account under the P&S Act. A custodial account is a trust account that is designed to keep shippers’ proceeds from the sale of livestock in a secure and centralized location until those proceeds can be distributed to the seller. According to the AMS, Barnesville failed to deposit funds equal to the proceeds received from livestock sales into the custodial account. Additionally, Barnesville reported a $15,711 insolvency in its Annual Report submission to AMS. Operating with custodial account shortages and while insolvent are both violations of the P&S Act. The AMS alleges that Barnesville’s violations place livestock sellers at risk of not being paid fully or completely. If Barnesville is proven to have violated the P&S Act in an oral hearing, it may be ordered to cease and desist from violating the P&S Act and assessed a civil penalty of up to $28,061 per violation.
USDA to invest $1 billion as first investment of new “Build Back Better” initiative. The USDA announced that it will be investing up to $1 billion to support and expand the emergency food network so food banks and local organizations can serve their communities. Building on the lessons learned from the COVID-19 pandemic, the USDA looks to enter into cooperative agreements with state, Tribal, and local entities to more efficiently purchase food from local producers and invest in infrastructure that enables organizations to more effectively reach underserved communities. The USDA hopes to ensure that producers receive a fair share of the food dollar while also providing healthy food for food insecure Americans. This investment is the first part of the USDA’s Build Back Better initiative which is focused on building a better food system. Build Back Better initiative efforts will focus on improving access to nutritious foods, address racial injustice and inequity, climate change, and provide ongoing support for producers and workers.
Colorado passes law changing agricultural employment within the state. On June 8, 2021, Colorado’s legislature passed Senate Bill 87, also known as the Farmworker Bill of Rights, which will change how agricultural employees are to be treated under Colorado law. The bill removes the state’s exemption for agricultural labor from state and local minimum wage laws, requiring agricultural employers to pay the state’s $12.32/hour minimum wage to all employees. Under the new law, agricultural employees are allowed to organize and join labor unions and must also be paid overtime wages for any time worked over 12 hours in a day or 40 hours in a week. The bill also mandates certain working conditions including: (1) requiring Colorado’s department of labor to implement rules to prevent agricultural workers from heat-related stress, illness, and injury when the outside temperature reaches 80 degrees or higher; (2) limiting the use of a short-handled hoe for weeding and thinning in a stooped, kneeling, or squatting position; (3) requiring an agricultural employer give periodic bathroom, meal, and rest breaks; and (4) limiting requirements for hand weeding or thinning of vegetation. Reportedly, Colorado’s Governor, Jared Polis, is eager to sign the bill into law.
Wildlife agencies release plan to improve Endangered Species Act. The U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) have released a plan to reverse Trump administration changes to the Endangered Species Act (“ESA”). The agencies reviewed the ESA following President Biden’s Executive Order 13990, which directed all federal agencies to review any agency actions during the Trump administration that conflict with the Biden-Harris administration objectives. The agencies look to reverse five ESA regulations finalized by the Trump administration which include the FWS’ process for considering exclusions from critical habitat designations, redefining the term “habitat,” reinstating prior regulations for listing species and designating critical habitats, and reinstating protections under the ESA to species listed as threatened. Critics of the agencies’ plan claim that the current administration’s proposals would remove incentives for landowners to cooperate in helping wildlife.
EPA announces intent to revise the definition of “waters of the United States.” On June 9, 2021, the EPA and the Department of the Army (the “Agencies”) announced that they intend to change the definition of “waters of the United States” (“WOTUS”), in order to protect the nation’s water resources. The Agencies’ also filed a motion in a Massachusetts federal court requesting that the court send the Trump administration’s Navigable Water Protection Rule (“NWPR”) back to the Agencies so they can initiate a new rulemaking process to change the definition of WOTUS. In the motion, the Agencies explained that pursuant to President Biden’s Executive Order 13990, they have reviewed the necessary data and determined that the Trump administration’s rule has led to significant environmental harm. The Agencies hope to restore the protections that were in place prior to the 2015 WOTUS rule. According to the EPA, the Agencies’ new regulatory process will be guided by: (1) protecting water resources and communities consistent with the Clean Water Act; (2) the latest science and the effects of climate change on the nation’s waters; (3) practical implementation; and (4) the experience and input of the agricultural community, landowners, states, Tribes, local governments, environmental groups, and disadvantaged communities with environmental justice concerns. The EPA is expected to release further details of the Agencies’ plans, including opportunity for public participation, in a forthcoming action. To learn more about WOTUS, visit https://www.epa.gov/wotus.
It’s been a busy spring for legal developments in pesticides and insecticides. Our last article summarized recent activity surrounding dicamba products. In today’s post we cover legal activity on glyphosate and chlorpyrifos.
Roundup award. The Ninth Circuit Court of Appeals dealt another loss to Monsanto (now Bayer) on May 14, 2021, when the court upheld a $25.3 million award against the company in Hardeman v. Monsanto. The lower court’s decision awarded damages for personal injuries to plaintiff Edward Hardeman due to Monsanto’s knowledge and failure to warn him of the risk of non-Hodgkin lymphoma from Roundup exposure. Monsanto argued unsuccessfully that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted the plaintiff’s claim that California’s Proposition 65 law required Monsanto to include a warning about Roundup’s carcinogenic risks on its label. That requirement, according to Monsanto, conflicted with FIFRA because the EPA had determined via a letter that a cancer warning would be considered “false and misleading” under FIFRA. The Ninth Circuit disagreed that the EPA letter preempted the California requirements.
The Court of Appeals also held that the trial court did not abuse its discretion in allowing the plaintiff’s expert testimony. Monsanto had challenged testimony from a pathologist whom it alleged was not qualified to speak as an expert. But the court agreed that the witness testimony met the standard that expert opinions be “reliably based” on epidemiological evidence.
Monsanto also challenged the damages themselves. The award in Hardeman included $20 million in punitive damages that the district court reduced from $75 million originally awarded by the jury. While $75 million seemed “grossly excessive,” the appellate court reasoned, $20 million did not, especially considering Monsanto’s reprehensibility, because evidence of the carcinogenic risk of glyphosate was knowable by Monsanto.
Roundup settlement. In a second Roundup case, a California district court last week rejected a motion to approve a $2 billion settlement by Monsanto (now Bayer) to a proposed class of users exposed to Roundup or diagnosed with non-Hodgkin lymphoma who have not yet filed lawsuits. The offer by Bayer in Ramirez, et al. v. Monsanto Co. included legal services, compensation, research and assistance with non-Hodgkin lymphoma diagnosis and treatment, and changes on the Roundup label advising users of a link to non-Hodgkin lymphoma, but would require class members to waive their right to sue for punitive damages if they contract non-Hodgkin lymphoma and stipulate to the opinion of a seven-member science panel about whether Roundup causes non-Hodgkin lymphoma.
The judge determined that the settlement would accomplish a lot for Bayer by reducing its litigation and settlement exposure, but it would greatly diminish the future settlement value of claims and “would accomplish far less for the Roundup users who have not been diagnosed with NHL (non-Hodgkin lymphoma)—and not nearly as much as the attorneys pushing this deal contend.” The court also determined that the benefits of the medical assistance and compensation components of the settlement, to last for four years, were greatly exaggerated and vastly overstated. The proposed stipulation to a science panel also received the court’s criticism. “The reason Monsanto wants a science panel so badly is that the company has lost the “battle of the experts” in three trials,” the court stated. Concluding that “mere tweaks cannot salvage the agreement,” the court denied the motion for preliminary approval and advised that a new motion would be required if the parties could reach a settlement that reasonably protects the interest of Roundup users not yet diagnosed with non-Hodgkin lymphoma.
Bayer responded to the court’s rejection immediately with a “five-point plan to effectively address potential future Roundup claims.” The plan includes a new website with scientific studies relevant to Roundup safety; engaging partners to discuss the future of glyphosate-based producers in the U.S. lawn and garden market; alternative solutions for addressing Roundup claims including the possible use of an independent scientific advisory panel; reassessment of ongoing efforts to settle existing claims; and continuing current cases on appeal.
Chlorpyrifos. The insecticide chlorpyrifos also had its share of legal attention this spring. Chlorpyrifos was first registered back in 1965 by Dow Chemical but its use has dropped somewhat since then. Its largest producer now is Corteva, who announced in 2020 that it would end production of its Lorsban chlorpyrifos product in 2021. That’s good timing according to the strongly worded decision from the Ninth Circuit Court of Appeals, which ruled in late April that the EPA must either revoke or modify all food residue tolerances for chlorpyrifos within sixty days.
The plaintiffs in the case of League of United Latin American Citizens v. Regan originally requested a review of the tolerances in 2007 based on the Federal Food, Drug and Cosmetic Act (FFDCA), which addresses pesticide residues in or on a food. FFDCA requires EPA to establish or continue a tolerance level for food pesticide residues only if the tolerance is safe and must modify or rescind a tolerance level that is not safe. Plaintiffs claimed the tolerances for chlorpyrifos are not safe based upon evidence of neurotoxic effects of the pesticide on children. They asked the EPA to modify or rescind the tolerances. The EPA denied the request, although that decision came ten years later in 2017 after the agency repeatedly refused to make a decision on the safety of the product. The Obama Administration had announced that it would ban chlorpyrifos, but the Trump Administration reversed that decision in 2017.
Plaintiffs objected to the EPA’s decision not to change or revoke chlorpyrifos tolerance, arguing that the agency should have first made a scientific finding on the safety of the product. The EPA again rejected the argument, which led to the Ninth Circuit’s recent review. The Ninth Circuit concluded that the EPA had wrongfully denied the petition, as it contained sufficient evidence indicating that a review of the chlorpyrifos tolerance levels was necessary. The EPA’s denial of the petition for review was “arbitrary and capricious,” according to the court. “The EPA has sought to evade, through one delaying tactic after another, its plain statutory duties,” the court stated.
More to come. While the spring held many legal developments in pesticide law, the rest of the year will see more decisions. The Roundup litigation is far from over, and the same can be said for dicamba. How will the EPA under the new administration handle pesticide review and registration, and the court's order to address chlorpyrifos tolerances? Watch here for these and other legal issues with pesticides that will outlive the spring.
Spring is a common time for farmers to deal with pesticides and insecticides, but this spring the legal system has also been busy with pesticides and insecticides. Important legal developments with dicamba, glyphosate, and chlorpyrifos raise questions about the future of the products, with proponents on both sides pushing for and against their continued use. In today’s post, we summarize legal activity concerning dicamba. Part 2 to this series will cover recent developments with Roundup.
Dicamba registration lawsuits. In April, the federal courts resumed two cases filed late last year that challenge the registration and label of dicamba products made by Bayer, BSF and Syngenta. The cases had been on hold since February due to the change to the Biden Administration and its EPA leadership. Center for Biological Diversity v. EPA, in federal district court in Arizona, claims that the 2020 registration of the products should not have been granted because the registration fails to meet the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) standard that a pesticide may not cause “unreasonable adverse effects” to the environment. Relief requested by the plaintiffs includes overturning the registration approvals and also ordering EPA to officially reverse via rulemaking its long-standing policy to allow states to impose local restrictions on pesticide registrations under FIFRA’s Section 24(C).
In the D.C. district court, American Soybean Association v EPA takes the opposite approach and argues that the EPA exceeded its duties under FIFRA by imposing application cutoff dates of June 30 for soybeans and July 30 for cotton and establishing 310-foot and 240-foot buffer zones for certain endangered species. The plaintiffs in that suit want the court to remove the cutoff dates and buffer restrictions from the approved dicamba labels. Manufacturers Bayer, BASF, and Syngenta have intervened in the cases, which both now await responses from the EPA.
Two additional challenges to the dicamba 2020 label approval were consolidated for review to be heard together by the D.C. Circuit Court of Appeals and now await the court’s decision. National Family Farm Coalition v. EPA originally filed in the Ninth Circuit Court of Appeals, argues that EPA failed to support its conclusion of “no unreasonable adverse effects” and did not ensure that endangered species and critical habitat would not be jeopardized by approved dicamba use. On the flip side, American Soybean Association v. EPA alleges that the 2020 label cutoff dates are too restrictive and buffer requirements are too large, which exceeds the authority granted EPA in FIFRA and the Endangered Species Act. The EPA has filed a motion to dismiss the cases but the plaintiffs have asked to be returned to the Ninth Circuit.
Bader Farms Appeal. The$265 jury verdict awarded last year to Bader Farms, which successfully argued that Monsanto was responsible for harm to its peach farms resulting from dicamba drift, is on appeal before the Eighth Circuit Court of Appeals. Monsanto filed its brief on appeal in March, arguing that the verdict should be reversed for several reasons: because the court had not required Bader Farms to prove that Monsanto had manufactured or sold the herbicides responsible for the damages, which could have resulted from third party illegal uses of herbicides; because the damages were based on “speculative lost profits”; and because the $250 million award of punitive damages violated state law in Missouri.
Office of Inspector General Report. The EPA’s Office of the Inspector General (OIG), also played a role in recent dicamba developments. The OIG is an independent office within the EPA that audits, investigates and evaluates the EPA. Just last week, the OIG issued a report on EPA’s decision in 2018 to conditionally register dicamba products, allowing them to be used during the 2019 and 2020 growing seasons. That decision by EPA ultimately led to a legal challenge by environmental groups, a holding by the Ninth Circuit Court of Appeals that the EPA violated FIFRA in approving the registrations, and a controversial order ceasing use of the dicamba products. The OIG evaluated the EPA’s registration decision making process for the dicamba registration. The title to its report, “EPA Deviated from Typical Procedures in Its 2018 Dicamba Pesticide Registration Decision” is telling of the OIG’s conclusions.
OIG determined that EPA had “varied from typical operating procedures” in several ways. The EPA did not conduct the required internal peer reviews of scientific documents created to support the dicamba decision. Senior leaders in the EPA’s Office of Chemical Safety and Pollution Prevention were “more involved” in the dicamba decision than in other pesticide registration decisions, resulting in senior-level changes to or omissions from scientific analyses to support policy decisions. EPA staff were “constrained or muted in sharing their scientific integrity concerns” on the dicamba registrations. The result of these atypical operating procedures by the EPA, according to the OIG, was substantial understatement or lack of acknowledgement of dicamba risks and the eventual decision by the Ninth Circuit to vacate the registrations.
The OIG recommended three actions the EPA should take in response to the report: requiring senior managers or policy makers to document changes or alterations to scientific opinions, analyses, and conclusions in interim and final pesticide registration decisions along with their basis for changes or alterations; requiring an assistant administrator-level verification statement that Scientific Integrity Policy requirements were reviewed and adhered to during pesticide registration decisions; and conducting annual training for staff and senior managers and policy makers to promote a culture of scientific integrity and affirm commitment to the Scientific Integrity Policy. The EPA had already taken action on the OIG’s first and third recommendations but has not resolved the second.
Will the OIG Report affect ongoing litigation on dicamba, or lead to additional lawsuits? That’s a critical question without an immediate answer, and one to keep an eye on beyond this spring.
To read more about legal issues with dicamba, visit our partner, The National Agricultural Law Center and its excellent series on "The Deal with Dicamba."
The dicamba roller coaster ride continues today, with a statement issued by the Ohio Department of Agriculture clarifying that the use of XtendiMax, Engenia, and FeXapan dicamba-based products in Ohio will end as of June 30, 2020. Even though the US EPA has issued an order allowing continued use of the products until July 31, 2020, use in Ohio must end on June 30 because the Ohio registrations for the three dicamba-based products expire on that day.
As we’ve explained in our previous blog posts here and here, the Ninth Circuit Court of Appeals vacated the registration of the dicamba products on June 3, 2020. In doing so, the court stated that the EPA had failed to perform a proper analysis of the risks and resulting costs of the products. According to the court, EPA had substantially understated the amount of acreage damaged by dicamba and the extent of such damage, as well as complaints made to state agriculture departments. The court determined that EPA had also entirely failed to acknowledge other risks, such as the risk of noncompliance with complex label restrictions, economic risks from anti-competition impacts created by the products, and the social costs to farm communities caused by dicamba versus non-dicamba users. Rather than allowing the EPA to reconsider the registrations, the court vacated the product registrations altogether.
The EPA issued a Cancellation Order for the three products on June 8, stating that distribution or sale by the registrants is prohibited as of June 3, 2020. But the agency also decided to examine the issue on the minds of many farmers: what to do with the products. Applying its “existing stocks” policy, the EPA examined six factors to help it determine how to deal with stocks of the product that are in the hands of dealers, commercial applicators, and farmers. The EPA concluded that those factors weighed heavily in favor of allowing the end users to use the products in their possession, but that use must occur no later than July 31, 2020 and that any use inconsistent with the previous label restrictions is prohibited.
Despite the EPA’s Cancellation Order, however, the Ohio Department of Agriculture is the final arbiter of the registration and use of pesticides and herbicides within Ohio. ODA patiently waited for the EPA to act on the Ninth Circuit’s ruling before issuing its guidance for Ohio users of the dicamba products. In its guidance released today, ODA stated that:
- After careful evaluation of the court’s ruling, US EPA’s Final Cancellation Order, and the Ohio Revised Code and Administrative Code, as of July 1, 2020, these products will no longer be registered or available for use in Ohio unless otherwise ordered by the courts.
- While use of already purchased product is permitted in Ohio until June 30, further distribution or sale of the products is illegal, except for ensuring proper disposal or return to the registrant.
- Application of existing stocks inconsistent with the previously approved labeling accompanying the product is prohibited.
But the roller coaster ride doesn’t necessarily end there. Several dangling issues for dicamba-based product use remain:
- We’re still waiting to see whether the plaintiffs who challenged the registrations (the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America) will also challenge the EPA’s Cancellation Order and its decision to allow continued use of the products, and will request immediate discontinuance of such uses.
- Bayer Crop Science, as an intervenor in the Ninth Circuit case, could still appeal the Ninth Circuit’s decision, as could the EPA.
- All of these orders add complexity to the issue of liability for dicamba damage. That issue has already become quite controversial, often pitting farmer against farmer and requiring the applicator or damaged party to prove adherence to or violation of the complicated label restrictions. But the Ninth Circuit’s attention to the risks of adverse impacts from the products raises additional questions about whether an applicator who chooses to use the products is knowingly assuming a higher risk, and whether a liability insurance provider will cover that risk. For this reason, growers may want to have a frank discussion with their liability insurance providers about coverage for dicamba drift.
The dicamba roller coaster ride will surely continue, and we’ll keep you updated on the next development.
Read the ODA’s Official Statement Regarding the Use of Over-the-Top Dicamba Products here.
When we explained in our last blog post the recent Court of Appeals decision that vacated the registration of three dicamba-based products, we mentioned that one possibility for answering the “what happens now” question was for the EPA to issue a cancellation order that would allow end users to use existing stocks of the products. That’s exactly what happened yesterday, when the US EPA made a final order that cancels the registrations of XtendiMax, Engenia, and FeXapan but allows for movement and use of the products. Here’s a summary of the agency’s order.
Authority to issue the cancellation order
After reviewing the background of the dicamba product registrations vacated by the Ninth Circuit Court of Appeals last week for lack of “substantial evidence” supporting the registrations, the EPA stated that it was relying upon the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to establish provisions for the disposition of existing stocks of registrations that are found to be invalid. “The Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled under [sections 3, 4 or 6 of FIFRA] to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of [FIFRA]” stated the agency.
The EPA noted that FIFRA does not prohibit the use of unregistered pesticides, but only prohibits the sale and distribution of unregistered pesticides. The agency noted that without its action, end users holding stocks of the products aren’t prevented from using the stocks without following the now voided label directions and restrictions. And the agency pointed to a similar action it took after a 2015 court order that vacated the registration of sulfoxaflor and a 2010 court decision that vacated the registration of spirotetramat. In both cases, the EPA utilized a cancellation order to establish terms and conditions for the disposition of existing stocks of the products.
Existing Stocks Determination
Back in 1991, the EPA established an “existing stocks policy” to help the agency assess how to treat existing stocks of cancelled pesticides, both when no significant risk concerns have been identified and when there are significant risk concerns for a cancelled product. The agency noted that it considered the six factors outlined in the policy for considering significant risk concerns associated with a cancelled pesticide and reached the conclusion that “distribution and use in certain narrow circumstances is supported.” The six factors the agency considered in determining what to do with the existing stocks of dicamba products are:
- Quantities of existing stocks at each level of the channels of trade
The agency noted that due to the current timing of the growing season, significant existing stocks are present in the possession of end users and throughout the channels of trade. Stating that it couldn’t determine the exact quantities of existing stocks at each level of the channels of trade, the EPA estimates that “approximately 4 million gallons could be in the channels of trade.”
- Risks resulting from the use of the existing stocks
Again concluding that because the product registrations were vacated and the labels therefore voided, end users were not legally bound to follow label restrictions if using the dicamba products. The agency concluded that such non-label uses would have greater potential for adverse effects than if the agency issued an order allowing and regulating the use of the existing stocks. Such an order is imperative, said the agency, to ensure that any use of the products would be consistent with previously approved labeling and could be enforced in order to prevent unreasonable adverse effects on the environment. Surprisingly, the EPA gave little attention to the volatility concerns raised by the Ninth Circuit in its decision last week, and evidence the court pointed to in that case that suggested that even applications by those who carefully followed the label restrictions were subject to drift and damage.
- The benefits resulting from the use of existing stocks
Capitalizing on the unfortunate timing of the Ninth Circuit’s vacation of the pesticide in regards to immediate needs for the current growing season, the agency concluded that “the benefits resulting from the use of the products are considerable and well established, particularly for this growing season.” The EPA reiterated many of the numerous communications it had received stating how essential the over-the-top products are, especially with the growing season underway. It also concluded that allowing non-over-the-top uses would result in substantially greater benefits to users and society than would disposal of the products.
- The financial expenditures users and others have already spent on existing stocks
Echoing the concerns of many farmers and again pointing to the current growing season, the agency concluded that “the costs to farmers are not limited to their existing stocks of these dicamba products, but include other sunk costs made in expectation of the availability of these products (seed purchase, tilling, planting, etc.) as well as the lost opportunity to switch to a different crop or to another herbicide or weed management method.”
- The risks and costs of disposal or alternative disposition of the stocks
The EPA concluded that disposal of the existing stocks of dicamba products would incur substantial costs for all and for stock already in the hands of end users, “may be neither feasible nor advisable.” Additionally, the agency pointed to disposal or return of opened containers which would have high risks of spillage and increased expenses for proper disposal.
- The practicality of implementing restrictions on distribution, sale, or use of the existing stocks
Another option available to the agency under FIFRA would be to issue individual stop sale, use and removal orders to all end users holding dicamba products, but the EPA concluded that such an action would be unwarranted under the present facts because tracking the existing stocks would be burdensome, inaccurate and impractical and that “hard-pressed farmers who have made large investments in their existing stocks may be uncooperative with a cancellation order that requires disposal.”
After weighing the six factors above, the EPA concluded that the six factors weigh heavily in support of allowing end users to use existing stocks of the dicamba products in their possession. However, the agency imposed a July 31 , 2020 cut-off date for use of existing stocks in order to “further reduce the potential for adverse effects.” Here are the final orders the agency made for distributed, sale and use of the products:
- Distribution or sale by the registrant. Distribution or sale by the registrant of all existing stocks of the products listed below is prohibited effective as of the time of the order on June 3, except for distribution for the purposes of proper disposal.
- Distribution or sale by persons other than the registrant. Distribution or sale of existing stocks of the products listed below that are already in the possession of persons other than the registrant is permitted only for the purposes of proper disposal or to facilitate return to the registrant or a registered establishment under contract with the registrant, unless otherwise allowed below.
- Distribution or sale by commercial applicators. For the purpose of facilitating use no later than July 31, 2020, distribution or sale of existing stocks of products listed below that are in the possession of commercial applicators is permitted.
- Use. Use of existing stocks of products inconsistent in any respect with the previously-approved labeling accompanying the product is prohibited. All use is prohibited after July 31, 2020.
While the manufacturers of XtendiMax, Engenia, and FeXapan are prohibited from selling and distributing their products effective as of June 3, 2020, the EPA’s cancellation order allows others to return, dispose of, or use the products according to the previous label restrictions and no later than July 31, 2020. But a few other factors come into play:
- Some states have already taken actions to restrict the use of the dicamba products within their states, which is within a state’s authority. Ohio has not done so, and instead has stated that it has been awaiting US EPA guidance on the legal status of the products and will communicate options for farmers afterwards. This means that users in Ohio should keep a close eye on the Ohio Department of Agriculture to see if it will go along with the US EPA’s guidance or direct otherwise.
- A cancellation order issued by the EPA is a final agency action that is subject to appeal, so we might see an immediate of the cancellation order and a request to stay the order pending appeal. Such an appeal could challenge whether the EPA has the authority to regulate existing stocks of the products and whether the agency’s analysis sufficiently addressed the risks of adverse impacts from continued use.
As seems often to be the case with dicamba, there’s a mixed sense of drama and dread with what lies ahead. We’ll be sure to keep you posted on the next legal news for dicamba.
Read the US EPA’s cancellation order for XtendiMax, Engenia, and FeXapan here.
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.