Documents & Links
Updated October 1, 2018 (WOTUS section updated April 24, 2020)
The resources for this chapter are divided into eight categories, mirroring the subsections that appear in Food, Farming, & Sustainability. Except for the special section on the Waters of the US rule, each begins with the most recent resources posted first. Website links are provided to assist readers in further research.
For important developments regarding jurisdiction under the Clean Water Act, scroll to the conclusion of the WOTUS section below - there was a final rule published April 21, 2020 and an important Supreme Court ruling April 23, 2020.
Conservation Programs & Initiatives:
Provisions of the 2018 Farm Bill reauthorize and in some cases amend existing conservation programs. The Conference Report for this Farm Bill from the Senate and House negotiators is found on the Senate Agriculture Committee website.
2018 Farm Act Retains Conservation Programs But Could Reduce Payments for Land Retirement, USDA ERS (Dec. 1, 2019)
Prior Converted Cropland Under the Clean Water Act, Cong. Res. Serv. In Focus Rep. IF11136 (Mar. 14, 2019).
Cost-Effective Strategies for Reducing Cropland Nutrient Deliveries to the Gulf of Mexico, USDA ERS, Amber Waves (Sept. 26, 2018) (derived from the full report, Reducing Nutrient Losses From Cropland in the Mississippi/Atchafalaya River Basin: Cost Efficiency and Regional Distribution, USDA ERS, Econ. Res. Rep. ERR-258 (Sept. 2018).
Every summer, a large area forms in the northern Gulf of Mexico where dissolved oxygen is too low for many aquatic species to survive. This “hypoxic zone” is fueled by nutrient (nitrogen and phosphorus) runoff from the Mississippi/Atchafalaya River Basin (MARB), a region containing about 70 percent percent of U.S. cropland. A 2013 simulation study by U.S. Geological Survey (USGS) researchers estimated that agriculture contributes about 60 percent of delivered nitrogen and more than 49 percent of delivered phosphorus to the Gulf.
Over the past 30 years, the hypoxic zone has had an average size of about 5,236 square miles, or roughly twice the size of the State of Delaware. In 2017, the Gulf hypoxic zone reached 8,776 square miles—about the size of New Jersey—which was its largest area measured to date.
Tillage Intensity and Conservation Cropping in the United States, USDA ERS, Econ. Inform. Bull. EIB-197 (Sept. 2018).
Agricultural Conservation: A Guide to Programs, Cong. Res. Serv. Rep. R40763 (Apr. 17 2018).
Conservation Compliance and U.S. Farm Policy, Cong. Res. Serv. Rep. No. R42459 (Oct. 6, 2016).
Conservation Reserve Program (CRP): Status and Issues, Cong. Res. Serv. Rep. No. R42783 (Aug. 29, 2014).
Conservation Provisions in the 2014 Farm Bill (P.L. 113-79), Cong. Res. Serv. Rep. No. R43504 (Apr. 24, 2014).
Challenges Facing USDA's Conservation Reserve Program, USDA, Amber Waves (June 2010).
USDA Office of Inspector General, Natural Resource Conservation Service Oversight and Compliance Activities, Audit Rep. No. 10601-0001-22 (Feb. 2013).
Elanor Starmer, Industrial Livestock at the Taxpayer Trough: How Large Hog and Dairy Operations are Subsidized by the Environmental Quality Incentives Program, A Report to the Campaign for Family Farms and the Environment (Dec. 2008).
CAFO Regulation, Litigation & Recent Issues:
In recent years the size and regional consolidation of Concentrated Animal Feedlot Operations (CAFOs) has increased dramatically. The environmental and societal impacts have also increased. The following resources track some of the developments in North Carolina, a leading state for CAFO siting.
For a description of what its like to live near a North Carolina hog CAFO, see, A Million Tons of Feces and an Unbearable Stench: Life Near Industrial Pig Farms, The Guardian (Sept. 20, 2017);
In April, June, and again in August 2018, juries in North Carolina ruled against the pork production division of Smithfield Foods in nuisance cases involving contract hog farmers, awarding millions of dollars to those who lived nearby. News reports include:
North Carolina Jury Awards Neighbors $473.5 million in Smithfield Hog Waste Suit, New Food Economy (Sept. 3, 2018)
Jury Awards Hog Farm Neighbors Their Biggest Verdict Yet, The News & Observer (Aug. 3, 2018)
What the Swine Nuisance Verdicts in NC Could Mean for Midwestern Producers, Successful Farming (Sept. 7, 2018) (including lists of other CAFO related nuisance judgments)
Hurricane Florence devastated many of the CAFOs in North Carolina, killing millions of animals and sending hog and poultry manure into flood waters. While damages are still being assessed, as of September 26, 2018, the North Carolina Department of Agriculture estimated the death of 4.1 million chickens and turkeys and 5,500 hogs. Crop and livestock losses are estimated at over $1.1 billion, not counting any environmental clean up. Recent news reports include:
Could Smithfield Foods Have Prevented the "Rivers of Hog Waste" in North Carolina After Florence? The New Yorker (Sept. 30, 2018)
Florence's Death Toll Includes Millions of Animals, Tampa Bay Times (Sept. 27, 2018)
After Hurricane Florence, How Much Damage Will Eastern N.C.’s Hog Farms Do?, Indy News (Sept. 26, 2018)
Overflowing Hog Lagoons Raise Environmental Concerns in North Carolina, National Public Radio (Sept. 22, 2018)
For an analysis of a state's efforts to fill the gaps in regulation, see Sarah A. Matsumoto, Citizens of Washington State Work to Fill Gaps in Regulation of Surface and Groundwater Pollution from CAFOs, ABA, Natural Resources & the Environment 26 (Spring 2019).
Background Legal Analysis and Major Litigation Regarding CAFOs under the CWA
American Farm Bureau v. EPA, 792 F.3d 281 (3rd Cir. 2015) (including a good explanation of the TMDL process).
Claudia Copeland, Clean Water Act Section 401: Background and Issues, Cong. Res. Serv. Rep. No. 97-488 (July 2, 2015).
Susan A. Schneider, Beyond the Food We Eat: Animal Drugs in Livestock Production, 25 Duke Environmental Law & Policy Forum 227 (2015).
Final EPA rules for CAFO regulation: 77 Fed. Reg. 44,494 (July 30, 2012) (codified at 40 C.F.R. § 122.23).
Alt v. U.S. E.P.A., 979 F. Supp. 2d 701 (N.D. W. Va. 2013).
Amanda Peterka, Water Pollution: Court Rules Against EPA On CAFO Discharges In Big Win For Farm Groups, Greenwire, E&E Publishing LLC (Oct. 13, 2013).
National Pork Producers Assoc. v. EPA, 635 F.3d 738 (5th Cir. 2011).
Air Pollution and Agriculture:
Note significant 2018 developments
UPDATE: Sept. 28, 2018: A number of Environmental groups filed a lawsuit against the EPA challenging EPA policy that exempts CAFOs from the requirements to inform state and local officials about releases of dangerous levels of pollutants under Section 304 of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11004.
The EPA policy is explained below:
"Farms do not need to report air emissions from animal waste at farms under either CERCLA or EPCRA." EPA, How does the Fair Agricultural Reporting Method (FARM) Act impact reporting of air emissions from animal waste under CERCLA Section 103 andEPCRA Section 304?, EPA (Apr. 27, 2018).
Here's a summary of recent developments, excerpted from the Agricultural Law Brief, Center for Agricultural & Shale Law, Penn State Law School (June 2018):
On May 2, 2018, the U.S. Court of Appeals for the D.C. Circuit issued a mandate vacating a 2008 final rule that provided agricultural exemptions for reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). Under the 2008 final rule, all agricultural operations were provided a complete exemption from CERCLA reporting requirements. While the 2008 final rule required certain concentrated animal feeding operations to report air emissions under EPCRA, the regulation exempted all other agricultural operations from EPCRA reporting requirements. After lengthy litigation, the U.S. Court of Appeals for the D.C. Circuit vacated the 2008 final rule on April 11, 2017. The recent mandate was issued by the court to enforce this 2017 court order.
Legislative and administrative actions since the issuance of the 2017 order, however, limit the impact of the recent mandate. On March 23, 2018, President Donald Trump signed into law the Consolidated Appropriations Act, 2018 (Omnibus Bill) which contained language exempting agricultural operations from CERCLA air emission reporting requirements (Public Law No: 115-141).
Additionally, because the Omnibus Bill excluded the reporting of air emissions from animal waste under CERCLA, EPA has stated that "these releases fall out of the reporting requirements of EPCRA section 304." (See EPA document entitled: How does the Fair Agricultural Reporting Method (FARM) Act impact reporting of air emissions from animal waste under CERCLA Section 103 and EPCRA Section 304?). Thus, EPA has indicated that agricultural operations "do not need to report air emissions from animal waste at farms under either CERCLA or EPCRA."
See also, Clean Air Act Issues in the 115th Congress: In Brief, Cong. Res. Serv. Rep. R44744 (Aug. 13, 2018).
Prior analysis and background:
Claudia Copeland, Air Quality Issues and Animal Agriculture: A Primer, Cong. Res. Serv. Rep. No. RL32948 (Dec. 22, 2014).
Claudia Copeland, Air Quality Issues and Animal Agriculture: EPA’s Air Compliance Agreement, Cong. Res. Serv. Rep. No. RL32947 (Aug. 18, 2014).
Environmental Integrity Project, Coalition Sues EPA for Failing to Address Factory Farm Air Pollution, (with links to the complaints filed in an attempt to force regulation).
The Trump administration rejected the Obama administrations efforts to ban the use of the insecticide, Chlorpyrifos. See, EPA Notice Rejecting Obama Administration's Research - Chlorpyrifos; Order Denying PANNA and NRDC's Petition to Revoke Tolerances (Mar. 29, 2017);
For commentary, see Eric Liptonmarch, E.P.A. Chief, Rejecting Agency’s Science, Chooses Not to Ban Insecticide, NY Times (Mar. 29, 2017); Dan Charles, EPA Decides Not To Ban A Pesticide, Despite Its Own Evidence Of Risk, NPR, All Things Considered (Mar. 29, 2017) (article and podcast).
A panel of the 9th Circuit ruled in August 2018 that the vacated the EPA's 2017 order maintaining a tolerance for the pesticide chlorpyrifos, and directed the EPA to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days. LULAC v. Wheeler, (Aug. 8, 2018). For a discussion of the case, see Court Orders E.P.A. to Ban Chlorpyrifos, Pesticide Tied to Children’s Health Problems, NY Times (Aug. 9, 2018)
The Trump DOJ has appealed for a ruling en banc. Sec. Perdue issued a statement praising the DOJ appeal and referencing the importance of the pesticide to farmers. Press Release, USDA Sec. Sonny Perdue (Sept. 24, 2018).
The pesticide Dicamba, marketed with new GE Dicamba resistant soybeans has created great conflict in farming communities. It's tendency to drift, even days after application has caused extensive damage to vegetation near application fields. National Public Radio has produced a series of audio reports detailing the problems as well as the EPA's decision to continue allowing its use. Visit this NPR The Salt page to see a listing of these reports.
Politco's Arren Kimbel-Sannit reported the following on August 14, 2019:
A number of environmental and advocacy groups filed an opening brief in federal appeals court Tuesday in a suit challenging EPA's continued approval of XtendiMax, a brand name for the herbicide dicamba.
The National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity and Pesticide Action Network North America contend EPA ignored statute, scientific evidence and complaints from agricultural producers over the herbicide's volatility and tendency to drift, resulting in damage to millions of acres of crops not genetically engineered to be resistant to the chemical.
Link to Plaintiffs' Brief describing history of Dicamba drift problems.
Two issues have been raised with regard to the popular pesticide Glyphosate, commonly known as RoundUp. First, some have questioned the safety of the pesticide, in particular given its ubiquitous use. These concerns been strongly rejected by its manufacturer, farm groups, and the EPA. Second, there is a concern regarding the developing resistance to the pesticide, a concern that is not subject to any challenge. While a full range of resources is well beyond the scope of this website, the following sites provide representative examples and generally chart the arguments.
Thousands of cases have been filed against Monsanto, acquired by Bayer in 2018, alleging that Glyphosate caused the plaintiff's cancer.
Kathryn Z Guyton, Dana Loomis, Yann Grosse, Fatiha El Ghissassi, Lamia Benbrahim-Tallaa, Neela Guha, Chiara Scoccianti, Heidi Mattock, & Kurt Straif, Carcinogenicity Of Tetrachlorvinphos, Parathion, Malathion, Diazinon, And Glyphosate, 16 THE LANCET ONCOLOGY 490 (May 2015)
Daniel Cressy, Widely Used Herbicide Linked To Cancer, Nature (Mar. 24, 2015)
US Right to Know, Monsanto Papers (Public posting of key documents and analysis obtained largely through discovery in litigation)
UPDATE: As of July 26, 2019, at least three juries have found in favor of plaintiffs who claimed that Glyphosate caused their cancer - Judges have reduced the punitive damages awarded but rejected Bayer's efforts to throw out the verdicts)
Monsanto Ordered to Pay $289 Million in Roundup Cancer Trial, NY Times (Aug. 10, 2018); Bayer's Monsanto Asks U.S. Court to Toss $289 Million Glyphosate Verdict, N.Y. Times (Sept. 19, 2018)
Monsanto Weedkiller Roundup Was "Substantial Factor' in Causing Man's Cancer, Jury Says, N.Y. Times (Mar. 19, 2019); Monsanto Ordered to Pay $80 Million in Roundup Cancer Case (Mar. 27, 2019); US Judge slashes $80 Million Award in Monsanto Cancer Case, Wash Post (July 15, 2019) (award reduced to $25 million).
$2 Billion Verdict Against Monsanto is Third to Find Roundup Caused Cancer, N.Y. Times (May 13, 2019). Judge Slashes Damages in Second Roundup Cancer Verdict Against Bayer, Politico (July 26, 2019) (award reduced to $86.7 million).
For regular updates on the litigation and other developments see, Monsanto Roundup Trial Tracker, Right to Know website.
For U.S. EPA's perspectives, see EPA's Glyphosate's website
For Bayer's perspectives and analysis see Bayer's Glyphosate website.
Michael Livingston, Jorge Fernandez-Cornejo, Jesse Unger, Craig Osteen, David Schimmelpfennig, Tim Park, and Dayton Lambert, The Economics of Glyphosate Resistance Management in Corn and Soybean Production, USDA, ERS, Econ. Res. Rep. No. 184 (Apr. 2015).
Donnelle Eller, “Super Weeds” Choke Farms, DES MOINES REGISTER (June 23, 2014).
Neil Hamilton, Don't Repeat Mistakes that Led to Superweeds, DES MOINES REGISTER (June 28, 2014).
General Pesticide Regulation Resources and Analysis:
Ensuring the Safety of Chemicals: Measures and Management Controls Needed to Improve EPA’s Pesticide Emergency Exemption Process, EPA OIG Report (Sept. 25, 2018)
Virginia Zaunbrecher, Dale Hattis, Ron Melnick, Susan Kegley, Timothy Malloy,John Froines, Exposure and Interaction: The Potential Health Impacts of Using Multiple Pesticides, Sustainable Technology and Policy Program, UCLA (Feb. 2016).
Susan A. Schneider, Examining Food Safety from a Food Systems Perspective: The Need for a Holistic Approach, 2014 WISC. L. REV. 397 (2014) (discussing the arsenic contamination of rice). For more on this issue, see Food Safety: Federal Efforts to Manage the Risk of Arsenic in Rice, U.S. GAO Rep. 18-199 (Mar. 16, 2018)
POLITICO reported that two beekeeping associations sued the EPA over its June announcement expanding the use of Sulfoxaflor, a pesticide that can now be applied to range of crops including alfalfa, strawberries, and citrus, and expanding the time periods for use. EarthJustice is representing the plaintiffs in this second round of litigation.
Sulfoxaflor was pulled from the market in 2015 after the U.S. Court of Appeals for the 9th Circuit said the agency failed to appropriately assess the pesticide's risk to pollinators. EPA then amended its guidelines in 2016 and forbid sulfoxaflor from being applied to crops attractive to bees and during bloom.
The agency's most recent assessment restored its use on citrus, cotton, cucurbits, soybeans and strawberries. EPA also approved new uses on alfalfa, corn, cacao, grains, pineapple, sorghum, teff, teosinte and tree plantations.
See, Beekeepers sue EPA over sulfoxaflor renewal (by Liz Crampton), POLITICO (Sept. 6, 2019).
Why Europe's Insecticide Ban Is Big News For Bees, Nat'l Geographic (Apr. 27, 2018) (article and video on our dependence on bees and Europe's decision to ban neonicotinoids for outdoor use)
GAO Report: Bee Health: USDA and EPA Should Take Additional Actions to Address Threats to Bee Populations, GAO-16-220 (Published: Feb 10, 2016; Publicly Released: Mar 11, 2016).
Steve Volk, Was A USDA Scientist Muzzled Because of His Bee Research? Wash. Post (Mar. 3, 2016).
Pollinator Health Task Force, Nat'l Strategy to Promote the Health of Honey Bees and Other Pollinators (May 19, 2015).
Pollinator Health Task Force, Pollinator Research Action Plan May 19, 2015).
Bee Health: The Role of Pesticides, Cong. Res. Serv. Rep. No. 43900 (Feb. 5, 2015).
Bee Health: Background and Issues for Congress, Cong. Res. Serv. Rep. No. 43191 (Jan. 20, 2015).
NSAC Report: AGRICULTURE AND CLIMATE CHANGE: Policy Imperatives and Opportunities to Help Producers Meet the Challenge (Nov. 2019)
World Food Security Increasingly At Risk Due to 'Unprecedented' Climate Change Impact, New UN Report Warns, UN News (Aug. 8, 2019) (with link to full report).
At USDA, A Drought of Stories on Its Own Climate Research (Politico, June 24, 2019)
"The Trump administration has resisted drawing attention to Agricultural Research Service studies related to climate change, according to POLITICO Pro reporter Helena Bottemiller Evich, who writes that USDA is “defying a longstanding practice of touting such peer-reviewed research from the Agriculture Department’s acclaimed in-house scientists.” The administration actively attempted to suppress news releases about an ARS study that documented how increasing concentrations of atmospheric carbon dioxide reduce the nutritional content of rice."
Sources: Science Advances, USDA ARS, POLITICO report by Helena Bottemiller Evich
UPDATE: On August 5, 2019, POLITICO published subsequent article reporting on the resignation of top climate scientist Lewis Ziska, who quit USDA because of the politization of scientific research. See, Helena Bottemiller, 'It feels like something out of a bad sci-fi movie' - A top climate scientist quit USDA, following others who say Trump has politicized science, POLITICO, (Aug. 5, 2019).
Agri-tech Start-Up To Pay Farmers For Storing Carbon in the Soil, Fin. Times (June 13, 2019). Indigo is an interesting start-up company, recognized as the top innovator and earning a #1 ranking on CNBC’s 2019 Disruptor 50 list. Their signature efforts are in sustainability and their main product is using microbes to increase production and foster crop resilience. But, they are now venturing into carbon capture.
UN Report Confronts Nations With Tough Choices on Climate (article previewing report to be issued at UN Climate Change Conference, Oct. 1, 2018).
One of the many articles appearing across the country with respect to immediate and long term disasters: As Drought Becomes Normal, What Happens Next? Sante Fe New Mexican (Sept. 29, 2018).
Changes in the Arctic: Background and Issues for Congress, Cong. Res. Serv. Rep. R41153 (Aug. 1, 2018).
Attaching a Price to Greenhouse Gas Emissions with a Carbon Tax or Emissions Fee, Cong. Res. Serv. Rep. IN10930 (July 17, 2018).
Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement, Cong. Res. Serv. Rep. R44761 (May 4, 2018).
UN Climate Change Annual Report 2017, United Nations (Apr. 30, 2018).
Evolving Assessments of Human and Natural Contributions to Climate Change, Cong. Res. Serv. Rep. R45086 (Feb. 1, 2018) (providing context for the conclusion that human influence is the dominant cause of warming as reported in detail in the Climate Science Special Report: Fourth National Climate Assessment).
Climate Science Special Report: Fourth National Climate Assessment, Volume I, U.S. Global Change Research Program, 2017.
Coral Davenport and Alissa Rubinmarch, Trump Signs Executive Order Unwinding Obama Climate Policies, N.Y. Times (Mar. 28, 2017).
Presidential Executive Order on Promoting Energy Independence and Economic Growth, Whitehouse, Office of the Press Secretary (Mar. 28, 2017).
Jane Leggett, Federal Citations to the Social Cost of Greenhouse Gases,
Cong. Res. Serv. Rep. No. R44657 (Oct. 19, 2016).
Richard K. Lattanzio, Kelsi Bracmort, James E. McCarthy, Lynn J. Cunningham, Methane: An Introduction to Emission Sources and Reduction Strategies,
Cong. Res. Serv. Rep. No. R43860 (Aug. 15, 2016).
Release (June 22, 2015).
Intergovernmental Panel on Climate Change, Climate Change 2014 - Synthesis Report of the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC): Summary for Policymakers, ]Rajendra K. Pachauri, Leo Meyer, ed. (2014).
U.S. Global Climate Change Research Program, National Climate Assessment (2014); Chapter 6 of the Report discusses Agriculture, Climate Change Impacts in the United States: Chapter 6: Agriculture.
The 2014 USDA Climate Change Adaptation Plan (June 2014).
Waters of the U.S. (WOTUS)
Scroll down for the latest developments (as of April 24, 2020):
After a lengthy proposed rule process, the EPA and Corps of Engineers under the Obama administration issued a new regulation interpreting its jurisdiction under the Clean Water Act. At issue is how to define waters that are under the jurisdiction of the EPA.
The so called "Waters of the U.S." rule has been criticized loudly by some in the agriculture community, and it has become a political rallying cause for those who oppose the EPA and those who oppose government regulation in more general terms. There may be valid concerns about how the rule will be implemented, but a wide variety of exaggerated claims have produced unwarranted fears throughout the agricultural community.
See, Despite Resistance, Researchers Say Iowa Impacts Of WOTUS Are Limited, Iowa Public Radio (Aug. 20, 2018).
The rule is not an agricultural regulation per se, however, because of the uproar in the agricultural community, resources are provided below to promote an objective understanding of the legal issues presented.
The WOTUS rule was challenged in court, including challenges mounted by a number of states. For example, the federal district court for the district of North Dakota enjoined the enforcement of the rule in thirteen states. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the WOTUS Rule nationwide while the case proceeded. This stopped implementation of the new rule, which had been set to take effect in August 2016.
State of Ohio, et al. v. U.S. Army Corps of Eng’rs, et al. (6th Circuit decision staying implementation of WOTUS).
On February 22, 2016, a divided Sixth Circuit court held that the court had jurisdiction to decide the case on its merits, even though the challenge is not among the types of actions for which jurisdiction in the courts of appeals is generally provided. Under a specific provision of the CWA, 33 U.S.C. § 1369(b), challenges to some decisions made must be filed in federal district courts, while others may be filed in the courts of appeals. The regulation does not “promulgate a standard of performance” nor does it “issue or deny a permit,” effects that would signal the appeals court's jurisdiction.
In re: U.S. Dept of Defense and U.S. EPA FInal Rule: Clean Water Rule: Definition of Waters of te U.S., 80 Fed. Reg. 37,054 (June 29, 2015) (6th Circuit decision holding that the appellate court had jurisdiction to decide the case).
For an excellent analysis of the history of this complex issue, current to the end of 2016, see EPA and the Army Corps’ Rule to Define “Waters of the United States," Cong. Res. Serv. Rep. No. R43455 (Jan. 5, 2017).
On January 13, 2017, the Supreme Court agreed to hear an appeal of this decision, with its review limited to the issue of whether the challenge to the rule should be heard in the district court or the appellate court. On January 22, the Supreme Court ruled that challenges to the Clean Water Act rule had to begin in the Federal District Courts, overturning the Sixth Circuit decision. For a good discussion of this decision, see Clean Water Rule Challenges Must Begin in Federal District Courts, Supreme Court Holds, Legal Sidebar, Cong. Res. Serv. (Jan. 31, 2018).
National Association of Manufactuters v. Dept. of Defense, U.S. Supreme Court Slip Opinion (Jan. 22, 2018). (Holding: Because the Waters of the United States Rule – a definition of the statutory term “waters of the United States” proffered by the Environmental Protection Agency and the Army Corps of Engineers in a 2015 regulation – falls outside the ambit of Section 1369(b)(1) of the Clean Water Act, challenges to the rule must be filed in federal district courts. This decision lifted the stay of the rule by the Sixth Circuit.)
This decision lifted the Sixth Circuit stay of the enforcement of the rule but allowed a variety of district court cases to proceed.
Meanwhile - President Trump signed an Executive Order as a signal that his administration would move to retract the WOTUS regulation.
On July 27, 2017, the EPA and the Dept. of Defense proposed a rule "to initiate the first step in a comprehensive, two-step process intended to review and revise the definition of 'waters of the United States' consistent with the President's Executive Order. See, 82 Fed. Reg. 34,899 (proposed rule) (July 27, 2017). In response to complaints about the lack of notice, the comment period was extended until Sept. 27, 2017. " Step One" was intended to repeal the 2015 WOTUS rule, an action which will reinstate the prior rule. Step Two will be to revise the prior rule. The agencies held public meetings in the Fall of 2017 and accepted public comments through a non-regulatory pre-proposal notice docket that closed November 28, 2017.
Also in November 2017, the EPA and the Corps of Engineers took action in anticipation of a U.S. Supreme Court decision that would lift the Sixth Circuit stay of the rule. They initiated another proposed rule that sought to add an "applicability date” to the Clean Water Rule of two years from the date of the final agency action on the proposal. In effect, this proposed suspending the rule.
"According to the Corps and EPA, adding an applicability date to the Clean Water Rule would maintain the status quo and prevent inconsistencies and uncertainties about the regulatory regime that could arise after the nationwide stay is terminated, but before the agencies have finalized regulations rescinding the Clean Water Rule. In essence, the November 2017 proposed rule would allow the agencies more time to undertake the two-step rescind and replace process without allowing the 2015 Clean Water Rule to take effect during the rulemaking process." Clean Water Rule Challenges Must Begin in Federal District Courts, Supreme Court Holds, Legal Sidebar, Cong. Res. Serv. (Jan. 31, 2018).
On February 6, 2018, the EPA and the Corps finalized the rule extending the applicability date of the 2015 Clean Water Rule, thus suspending the rule by delaying its effective date to February 6, 2020.
83 Fed. Reg. 5200 (final rule) (Feb. 6, 2018).
Environmental groups immediately sued in federal district court, alleging APA violations in the enactment of this "suspension rule" seeking to have it enjoined.
On August 6, 2018, the U.S. District Court in South Carolina held that "the government failed to comply with [APA] requirements in implementing the Suspension Rule." The court granted summary judgment for the environmental plaintiffs, denied the government's cross-motion for summary judgment, enjoined the Suspension Rule nationwide. S.C. Coastal Conservation League v. Pruitt, No. 2-18-cv-330-DCN (D.S.C. Aug. 16, 2018). A suit filed in the Southern District of Washington state produced the same result.
The EPA stated that it would focus its efforts on its two-step regulatory process for repealing and replacing the WOTUS regulations rather than appealing these decisions.
As a result of state actions to enjoin the 2015 rule and the enjoined federal attempt to postpone the effective date of the rule, the 2015 WOTUS rule is in effect in 23 states, the District of Columbia, and the U.S. Territories. It is enjoined in others, reverting to the pre-2015 regulatory definitions.
The EPA website provides a map that indicates which states are under the WOTUS rule and which are not. Definition of "Waters of the United States": Rule Status and Litigation Update, EPA website.
At the end of 2018, the EPA and the Army Corps of Engineers announced their proposal for a new definition of "waters of the U.S." This definition would greater limit federal jurisdiction, shrinking the number of streams, bogs, and wetlands covered.
EPA and Army Propose New "Waters of the United States" Definition, EPA Press Release (Dec. 11, 2018).
PBS Newshour Video explanation, This Trump Plan Would Strip Protections from Wetlands and Smaller Waterways (Dec. 11, 2018).
The proposed rule was published in the Federal Register on February 14, 2019.
On October 22, 2019, the EPA and Department of the Army published a final rule (referred to as Step One) to repeal the 2015 Rule defining “waters of the United States” and re-codify the regulatory text that existed prior to the 2015 Rule. The final Step One rule became effective on December 23, 2019. 84 Fed. Reg. 56,626 (Oct. 22, 2019).
NOTE RECENT DEVELOPMENTS APRIL 2020
On April 21, 2020, the EPA and the Department of the Army replaced the Step One rule with a new final rule referred to as the "Navigable Waters Protection Rule." This rule provides a new WOTUS definition based on four categories of water that are covered under federal Clean Water Act jurisdiction; provides a significant number of broad exclusions from coverage for certain categories, and defines terms. This new rule is set to become effective June 22, 2020.
On April 23, 2020, the U.S. Supreme Court issued its opinion in County of Maui, Hawaii v. Hawaii Wildlife Fund, a case involving contaminated groundwater, holding that Clean Water Act "point source" jurisdiction extends to sources that are the "functional equivalent of a direct discharge."
Below are links to some additional helpful resources:
EPA's Clean Water Rule website
Prior Converted Cropland Under the Clean Water Act, Cong. Res. Serv. In Focus Rep. IF11136 (Feb.11, 2020).
Waters of the United States (WOTUS): Repealing and Revising the 2015 Clean Water Rule, Cong. Res. Serv. In Focus Rep. IF11339 (Oct. 23, 2019).
Contaminants of Emerging Concern under the Clean Water Act, Cong. Res. Serv. Rep. No. R45998 (Nov. 7, 2019).
Evolution of the Meaning of “Waters of the United States” in the Clean Water Act, Cong. Res. Serv. Rep. No. R44585 (Mar. 5, 2019).
Wading Into the “Waters of the United States,” Cong. Res. Serv. Legal Sidebar, LSB10236 (Dec. 28, 2018).
“Waters of the United States” (WOTUS): Current Status of the 2015 Clean Water Rule, Cong. Res. Serv. Rep. No. R45424 (Dec. 12, 2018).
Overview of the Army Corps and EPA Rule to Define “Waters of the United States” (WOTUS) and Recent Developments, Cong. Res. Serv. In Focus Rep. No. IF10125 (Oct. 22, 2018).
Wetlands: An Overview of Issues, Cong. Res. Serv. Rep. RL33483 (Jan. 5, 2017).
Other Resources and General Environmental Resources
EPA Advisory Committees: Improvements Needed for the Member Appointment Process, U.S. GAO Rep. GAO-19-280 (July 2019)
Here's How American Uses Its Land (Bloomberg graphical images of land use in the US)
A Primer on Land Use in the United States, USDA, ERS, Amber Waves (Dec. 4, 2017).
Wetlands: An Overview of Issues, Cong. Res. Serv. Rep. No. RL33483 (Jan. 5, 2017).
Water Quality Issues in the 115th Congress: An Overview, Cong. Res. Serv. Rep. No. 43867 (Jan. 13, 2017).
M. Lynne Corn and Alexandra M. Wyatt, The Endangered Species Act: A Primer,
Cong. Res. Serv. Rep. No. 31654 (Sept. 8, 2016).
Betsy A. Cody, Charles V. Stern, Nicole T. Carter, and Pervaze A. Sheikh, Water Resource Issues in the 114th Congress, Cong. Res. Serv. Rep. No. 42947 (Jan. 23, 2015).
2019 USDA ERS Reports on the Environment (available on the USDA ERS website)
Agriculture and Climate Change, USDA, ERS (August 20, 2019)
Agricultural Impacts and Adaptation, USDA, ERS (August 20, 2019)
Agricultural Production and Mitigation, USDA, ERS (August 20, 2019)
Data and Decision-making Support, USDA, ERS (August 20, 2019)
Conservation Programs, USDA, ERS (August 20, 2019)
Agricultural Resources and Environmental Indicators, 2019, USDA, ERS (May 2019)
Policy Instruments for Protecting Environmental Quality, USDA, ERS (August 20, 2019)
Cost-Effectiveness and Policy Design, USDA, ERS (August 20, 2019)
Reducing Nutrient Losses From Cropland in the Mississippi/Atchafalaya River Basin: Cost Efficiency and Regional Distribution, USDA, ERS (September 2018)
Tillage Intensity and Conservation Cropping in the United States, USDA, ERS (September 2018)
General Legal Resources
U.S. Code (statutes)
Agricultural Law Resources
USDA, NRCS, ACEP
USDA, NRCS, EQIP
Ducks Unlimited (CRP)
Natural Resources Defense Council - Climate Resilient Farms
Recognizing the importance of these issues, a specialized course in Agriculture & the Environment is one of the required courses in the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law. This course is taught by the leading agricultural law professor, Christopher Kelley and is available to both degree seeking and non-degree students.
2010 - present
2010 - present