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There’s always something going on with the waters of the United States (WOTUS) rule. Last September, we wrote a post about how the 1986/1988 WOTUS rule would replace the 2015 Obama rule until the Trump administration finalized its new rule. Well, the final rule was just announced by the EPA on January 24, 2020. So, what does the new rule categorize as “waters of the United States?” Are there any differences between the rule as it was proposed in February of 2019 and the final rule? Will this version of WOTUS stick?
What is (and isn’t) WOTUS now?
The Trump EPA’s WOTUS rewrite maps out which waters are and are not waters of the United States. The following are WOTUS in 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.
Notably, this definition is a great deal shorter than the 2015 iteration of the rule, meaning that less waters fall under the rule. For a refresher on the 2015 rule, we discussed it at length here.
In addition, the new rule contains a much longer list of waters that are not WOTUS:
- Waters or water features that are not identified in the definition of WOTUS, above;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral 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.
Changes made to proposed rule
The most significant difference between the proposed rule and the final rule is the treatment of some waters connected by ephemeral streams. Ephemeral streams are those streams that only last for a short time after precipitation. In the proposed version of the rule, if upstream perennial and intermittent tributaries were connected to a water of the United States by an ephemeral stream, they were not WOTUS. The final rule changes this, and such tributaries are WOTUS if they have a surface water connection to a downstream water of the United States during a normal year. To make a long story short, the final rule protects some bodies of water that the proposed rule left out.
So, WOTUS is set in stone now, right?
Not exactly. In addition to the ongoing lawsuits over the brief recodification of the 1986/1988 rules, (see our post here), it is almost certain that environmental groups and some states will file lawsuits against the new WOTUS rule. Additionally, while many in the world of agriculture cheer the new rule, there are other groups that have already spoken out against it. For example, the group Public Employees for Environmental Responsibility (PEER), which includes many EPA employees, scientists, and lawyers, filed a lengthy complaint against the rule with the Inspector General. In the complaint, PEER argues that the new rule violates EPA’s “Scientific Integrity Policy,” which EPA employees must follow when making decisions. PEER alleges that top employees at the EPA did not follow this policy when writing the rule because the rule was not based on science, and EPA staff with expertise in the area were not consulted. While the new rule is currently the law of the land, we’ll have to wait and see how long it will last. Challenges like the PEER complaint will have to be addressed, as well as an inevitable wave of lawsuits. Like the 2015 rule, the lawsuits and challenges will likely alter and/or interrupt the implementation of this so-called “final” rule.
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.
A new rule proposed by the USDA Agricultural Marketing Service (AMS) covers a topic that has been up in the air for more than a decade. The 2008 Farm Bill called on the Secretary of Agriculture to create regulations meant to guide the USDA in determining whether or not a packer, swine contractor, or live poultry dealer gave a person or locality “any undue or unreasonable preference or advantage” when purchasing livestock and meat products. The Secretary of Agriculture entrusted the rulemaking to USDA’s Grain Inspection, Packers and Stockyards Administration (GIPSA). GIPSA did propose versions of the rule in 2010 and 2016, but neither ever went into effect due to congressional prohibitions on such rulemaking and a presidential transition, respectively. (The anticipated regulations have long been referred to as the “Farmer Fair Practice Rules.”) Once Trump came into office, his administration did away with GIPSA and gave its responsibilities to AMS, further delaying the rulemaking.
After all this time, what does AMS propose for the Farmer Fair Practice Rules? On January 13, AMS published its proposed rule in the Federal Register. AMS would add a section to the Packers & Stockyards regulations, which would allow the Secretary of Agriculture to “consider one or more criteria” when deciding whether a packer, swine contractor, or live poultry dealer unfairly favored any person or locality over another in their dealings. AMS developed four criteria to be considered when determining whether a packer, contractor, or dealer’s actions were unfair. Actions would be deemed unfair when they:
- Cannot be justified on the basis of cost savings related to dealing with different producers, sellers, or growers;
- Cannot be justified on the basis of meeting a competitor’s prices;
- Cannot be justified on the basis of meeting other terms offered by a competitor; and
- Cannot be justified as a reasonable business decision that would be customary in the industry.
In the rulemaking, AMS provides several examples of fair and unfair practices. AMS also emphasizes several times that the Secretary of Agriculture would not be limited to considering just those four criteria when making a decision, as each situation is unique. In essence, the proposed language is meant to guide the Secretary’s thinking when making a determination about whether or not an action is unfair.
If you would like to read more about this proposed rule it is available in its entirety here. Information about submitting comments on the rule is available at the same link. Comments on the rule may be submitted up until March, 13, 2020. Will this version of the elusive Farmer Fair Practice Rules finally stick? We will have to wait and see.
With 2019’s ups and downs in the weather and the marketplace, it’s likely that many farmers used the Federal Crop Insurance Program to mitigate their losses. Those farmers whose crop insurance claims reach $200,000 or more will be audited by the USDA’s Risk Management Agency.
What’s the purpose of an audit—does it mean you’re in trouble with the government? What can you expect when going through the audit process? How do you prepare for an audit? What kind of records and documentation do you need? All of these questions and more are answered in a new fact sheet we recently published through our partnership with the National Agricultural Law Center. Click here to read the fact sheet to better prepare you for going through an audit.
I often receive quizzical looks when someone asks me what kind of law I practice and I say “agricultural law.” A common response is “what in the world is that”? A look back at agricultural law in 2019 provides a pretty good answer to that question. Our review of major developments in the last year illustrates the diversity of legal issues that make up the world of agricultural law. It’s never dull, that’s certain.
Here are the highlights of what we saw in agricultural law in 2019:
- The Lake Erie Bill of Rights (LEBOR). Toledo citizens gained national attention when they passed a charter amendment granting legal rights to Lake Erie and its ecosystem to “exist, flourish, and naturally evolve.” The amendment also allowed Toledoans to sue corporations and governments that violate the lake’s legal rights. Ohio’s legislature quickly enacted a law prohibiting any attempt to enforce LEBOR, and Drewes Farm challenged LEBOR as unconstitutional in a lawsuit that is still tied up in federal court. While Toledoans won’t be able to use LEBOR to recognize legal rights for the lake, the measure raised awareness of the water quality frustrations felt by Toledoans and others with ties to Lake Erie, and brought attention to similar efforts around the country to protect natural resources by granting them legal rights. Read our review of LEBOR here.
- Watersheds in Distress tug-of-war. Controversial rules proposed by the Kasich administration would have expanded areas in Ohio designated as “watersheds in distress” and added regulations for farmers operating within those areas. Governor DeWine’s new Director of Agriculture yanked the rules upon taking office in January, however, effectively ending the controversy over whether more regulations for farmers are the solution to Ohio’s water quality problems. The governor's H2OH initiative offers an alternative to the Watersheds in distress approach.
- Hemp hemp, hooray. After the 2018 Farm Bill legalized hemp by distinguishing it from marijuana under federal law, then authorized states to allow hemp production, Ohio passed legislation also decriminalizing hemp. Ohio’s proposed rules for cultivating and processing hemp are now out, and ODA held a hearing on the proposed rules on December 18, 2019. ODA also submitted Ohio’s Hemp Production Plan to the USDA in December, and the USDA approved the plan. Once the state rules become final, Ohio’s hemp program will open up and applicants can apply for cultivation licenses and begin growing hemp as a commodity crop in 2020. ODA’s hemp program page is here.
- Waves of WOTUS. We began 2019 with the Trump administration’s proposed WOTUS rewrite in February, which is still under review and not yet effective. We followed that with the administration’s announced repeal of the Obama-era 2015 WOTUS rule in September; the repeal became effective on December 23, 2019. There’s more: the administration published a reinstatement of the WOTUS definition from 1986/1988 until its proposed rule becomes final. But that’s not all. Sprinkled in and around those dates were a slew of lawsuits and injunctions challenging the Obama-era rule, the rulemaking process, and the pre-2015 definitions of WOTUS. By the end of the year, we were left with a patchwork of different WOTUS rules across the country and uncertainty about which are actually in effect. Read our latest WOTUS post here.
- Third Roundup cancer lawsuit is biggest yet. A jury awarded a whopping $2 billion to a California couple who claimed that Monsanto failed to warn them about the health risks of using Roundup, which they believe caused their non-Hodgkins lymphoma. This was the largest of three verdicts against Monsanto to date, but the court later reduced the amount to $87 million. Approximately 13,000 more Roundup cases are pending in state and federal courts across the country, and more Roundup lawsuits are also underway against Home Depot and Lowe’s. Bayer announced in June that it would invest $5.6 billion on weed management research to find alternatives to the glyphosate used in Roundup.
- Ohio’s Right to Farm law expanded. Buried deep in Ohio’s budget bill were significant changes to Ohio’s Right to Farm law, the law that gives agricultural activities immunity from civil nuisance lawsuits. The changes were an obvious response to the Lake Erie Bill of Rights initiative. The revisions allow agricultural activities on any CAUV land and agricultural activities conducted by a person pursuant to a lease agreement to qualify for the immunity, in addition to the pre-existing law’s coverage for land owners enrolled in the “Agricultural District Program” with the county auditor. The new law also attempts to clarify the types of agricultural activities that receive protection under the law, including fertilizer and manure applications and any expansions or changes in farm operations. Read more about the changes, which became effective October 17, here.
- Congress increases farm bankruptcy limit. Sometimes Congress can agree on something. The Family Farmer Relief Act of 2019 is one example. The federal bill, effective August 23, 2019, raised the debt limit for family farmers and fishermen seeking to use Chapter 12 bankruptcy law to reorganize debts and stay in business. Farmers may now have an aggregate debt of up to $10 million when using Chapter 12, rather than the previous limit of $4.4 million.
- Revisions to H-2A rules begin. Long awaited revisions to the H-2A program are underway. In October, changes were made to the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers. Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.
- Meat and eggs are not so simple anymore. While all is quiet in Ohio, the country continues to battle over what exactly is “meat” and when eggs must come from cage free hens. The most recent egg law arose in Michigan, whose lawmakers passed a bill that will require all eggs sold in the state by 2024 to be from birds housed in cage-free facilities. Oregon and Washington passed similar laws in 2019. Meanwhile, litigation in Arkansas has put a hold on carrying out a state law that prohibits labeling a food product as “meat” if it doesn’t derive from an animal. A similar law and lawsuit developed in Missouri last year. And in Washington DC, the USDA and FDA jockeyed for regulatory authority over “cell cultured meat” and finally agreed to divide labeling and inspection authority between the two agencies. We expect these food battles to continue in 2020.
- Solar leasing on the rise. Yes, solar leasing in Ohio. Thousands of acres of farmland in Ohio will soon be home to utility-scale solar energy facilities under long-term solar energy leases. The Ohio Power Siting Board has approved six solar facilities, with eight more in the works. We’ve examined the legal issues raised by solar energy leasing on farmland and have summarized them in our Farmland Owner’s Guide to Solar Leasing, available here.
What might the wide world of agricultural law see in 2020? We’ll tackle that question next, so stay tuned for more.