Supreme Court to decide CWA dispute

Posted December 15, 2015

The U.S. Supreme Court has agreed to decide whether property owners can challenge the federal government in court, according to a Capital Press article available here. Reuters also published an article available here.

So far, three federal appeals courts have been unable to agree on this question.

Attempts by landowners to contest “jurisdictional determinations” have been rejected by the 9th U.S. Circuit Court of Appeals, which oversees nine Western states, and the 5th U.S. Circuit Court of Appeals, which oversees three Southern states.

However, the 8th Circuit Court, which has jurisdiction over seven Midwestern states, arrived at the opposite conclusion.

In a ruling earlier this year, the court held that landowners can ask federal judges to reverse such determinations, which carry the heavy regulatory burdens of complying with the Clean Water Act (CWA).

The court will soon hear an appeal brought by the Obama administration, which is contesting a lower court ruling that said Hawkes Co Inc could file a lawsuit over whether it needs a permit to open a peat mine in Minnesota, according to Reuters.

The new case addresses the separate question of when property owners can contest a finding by the federal government that a property falls under Clean Water Act jurisdiction.

Once the government determines that a property is covered by the law, property owners can either proceed through the permitting process, go ahead without a permit and face possible fines of $37,500 a day, or abandon their plan to develop the land.

Property rights advocates have said the permitting process can take two years and cost up to $270,000.

The Supreme Court will hear arguments in the new case next spring with a ruling due by the end of June.

The case is U.S. Army Corps of Engineers v. Hawkes, U.S. Supreme Court, No.15-290.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Court places hold on water rule nationwide

Posted October 12,2015

A U.S. court on Friday issued an order temporarily blocking the implementation of a federal water rule across the country, according to a Reuters article available here. The Wall Street Journal also published an article available here and The Washington Times here.

The U.S. Court of Appeals for the 6th Circuit granted a nationwide stay against the Waters of the United States (WOTUS) rule, which is intended to clarify which bodies of water are covered by the Clean Water Act. The rule was finalized by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers in May but still faces political and legal opposition.

The appellate court said that the 18 states challenging the new standards were unlikely to face immediate irreparable harm from the rule, but there was also no evidence that the nation's waters would suffer "imminent injury" if the regulation was put on hold.

The rule aims to bring smaller bodies of water at the outer edges of watersheds under the Clean Water Act and was issued jointly with the U.S. Army Corps of Engineers, according to The Wall Street Journal.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing,” said the majority on a three-judge appeals court panel.

In a statement, the EPA said it respected the court’s call “for more deliberate consideration of the issues in the case”, according to The Washington Times.

“The court acknowledges that clarification of the Clean Water Act is needed and that ‘agencies conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance,’ ” the EPA said.

For now, the former rules go back into effect.

Opponents welcomed the decision and said it represents a win for a variety of stakeholders who would have faced harsh new federal mandates.

“The Sixth Circuit’s order to suspend nationwide the implementation of the final WOTUS rule is a victory for all states, local governments, farmers, ranchers, and landowners,” Sen. James Inhofe, Oklahoma Republican and chairman of the Senate Environment and Public Works Committee, said in a statement.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Federal judge halts EPA's clean water rule

Posted August 28, 2015

A federal judge in North Dakota blocked the Obama administration’s waters of the U.S. (WOTUS)” rule hours before it was set to go into effect, according to a U.S. News and World Report article available here. The Wall Street Journal also published an article available here and Reuters here.

U.S. District Judge Ralph Erickson in Fargo issued a temporary injunction requested by North Dakota and 12 other states halting the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers from regulating some small streams, tributaries and wetlands under the Clean Water Act. The rule, which has prompted fierce criticism from farmers among others, was scheduled to take effect Friday.

North Dakota Attorney General Wayne Stenehjem, who filed the injunction request, said his reading of the ruling was that it applied to all 50 states, not just the 13 that sued. However, the EPA said in a statement that it applied only to the 13 and it would be enforced beginning Friday in all other states.

The 13 states exempted for now are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

The North Dakota ruling follows a separate decision on Thursday in Georgia, where a federal judge rejected a similar request by a different group of 11 states seeking to stop the EPA rule, according to The Wall Street Journal.

The EPA spokeswoman said the Army Corps and the EPA are “evaluating these orders and considering next steps in the litigation.” The agency has the option to ask a higher court to throw out the judge’s injunction.

The EPA has said the rule is necessary to clarify which waters should fall under the protection of the federal Clean Water Act of 1972 after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially streams and wetlands, should fall under federal jurisdiction.

The WOTUS rule has faced intense opposition from Republicans in Congress, farmers and energy companies. Critics claim the rule vastly expands the federal government's authority and could apply to ditches and small isolated bodies of water, according to Reuters.

The EPA and Army Corps have argued that the rule does not create new permitting requirements and only seeks to make jurisdictional determinations more predictable.

At least 10 lawsuits have been filed in federal district courts challenging the rule, with at least 27 states joining in the lawsuits. Several petitions for review have also been filed with U.S. federal appellate courts.

"This is a victory in the first skirmish, but it is only the first," North Dakota Attorney General Wayne Stenehjem in a statement. "I remain confident that the rule will be declared unlawful once all the issues have been presented."

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Twelve states challenging CWA rule to be heard together

Posted August 3, 2015

A dozen lawsuits against the newly finalized “waters of the United States” (WOTUS) rule are scheduled to be heard together before the 6^th Circuit Court based in Ohio, according to an Agri-Pulse article available here. Capital Press also published an article available here and NBC Nebraska here.

The WOTUS rule aims to expand Clean Water Act protections to cover streams and wetlands.

The 73-page rule, which was intended to clarify certain aspects of the CWA only it raises more questions than it clarifies. One of the most troubling aspects is that any interpretations of the WOTUS rule are left to agency staff members, according to Capital Press.

Landowners have no means of appealing those interpretations without going to court. There are12 lawsuits filed so far against the EPA and the Corps over the rule. Among the plaintiffs are 28 states, ranchers, farmers and environmentalists.

The plaintiffs argue that the EPA’s new rule wrongly places a majority of water and land resources management with the federal government. Congress and the courts have confirmed the states have primary responsibility for the protection of intrastate waters and land management; however, the states argue that the burdens are harmful to the states and will negatively affect farmers, developers and landowners, according to NBC Nebraska.

Attorney General Doug Peterson said, “Farmers, ranchers, and landowners will find it difficult to operate without added permits and additional obstacles.”

The states are seeking to have the rule vacated and the EPA and Corps enjoined from enforcing the new definition of WOTUS.

The states participating in the filing are: Alaska, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Sixteen states sue the EPA

Posted June 30, 2014

Sixteen states have filed lawsuits against the U.S. Environmental Protection Agency (EPA), contesting a rule that expands the definition of bodies of water subject to federal pollution controls, according to a Reuters article available here. Feedstuffs also published an article available here and Brownfield Ag News here.

The actions are a coordinated challenge to an EPA rule issued on May 27 that defines the jurisdiction of the EPA and the U.S. Army Corps of Engineers over rivers, streams, lakes or marshes, which was meant to clarify the waters protected by the anti-pollution provisions of the 1972 Clean Water Act (CWA).

There are two lawsuits, one was filed in the United States District Court for the District of North Dakota and the other in Texas. The states joining the lawsuit are Alaska, Arizona, Arkansas, Colorado, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Texas and Wyoming, according to Feedstuffs.

In the lawsuit, the states contend the new definition of "Waters of the United States" violates provisions of the CWA, the National Environmental Policy Act, and the United States Constitution. Missouri attorney general Chris Koster said that without such a ruling, the law would take effect 60 days after the rule was published.   

The states assert that the EPA's rule wrongly broadens federal authority by placing a majority of water and land resources management in the hands of the federal government.

Missouri Attorney General Chris Koster, who joined the suit, says the official definition by EPA “extends the agencies’ regulation far beyond what a reasonable person considers to be a waterway,” according to Brownfield Ag News,

Missouri Farm Bureau President Blake Hurst says he’s pleased Missouri’s and other Attorney’s General have taken this action, ”Which is a pretty good indication of how upset people are about the rule. There is a great deal of hope out in farm country that he’ll be successful with this court case.”

Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management, according to Koster. In the lawsuit, the states argue that the burdens created by the new EPA requirements on waters and lands are harmful to the states and will negatively affect farmers, developers and landowners, according to Feedstuffs.

The new EPA rule would extend federal jurisdiction over tributaries that may be natural, man-altered or man-made, including canals and ditches, said the complaint filed in Texas, according to Reuters.

The rule fails to account for duration of water flow, suggesting federal agencies can assert jurisdiction over “dry ponds, ephemeral streams, intermittent channels and even ditches,” the Texas lawsuit stated.

One case is State of Texas v. U.S. Environmental Protection Agency, in U.S. Southern District of Texas, No. 15-cv-162. The other is North Dakota v. U.S. EPA, No. 15-59 in Federal District of North Dakota.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

EPA Releases Final WOTUS Rule

Posted May 28, 2015

The U.S. Environmental Protection Agency (EPA) and the U.S. Army finalized the Clean Water Rule today to protect from pollution and degradation the streams and wetlands that form the foundation of the nation’s water resources, according to an EPA release available here. Politico also published an article available here and Farm Futures here.

The rule ensures that waters protected under the Clean Water Act (CWA) are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” said EPA Administrator Gina McCarthy. “Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures – which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.”

Opponents are already condemning it as a massive power grab by Washington, saying it will give bureaucrats the authority to penalize landowners every time a cow walks through a ditch. And it comes amid years of complaints from Republicans about President Barack Obama’s regulatory agenda, which has encompassed everything from power plants and health insurers to Internet providers and for-profit colleges, according to Politico.

Critics are already fighting back. The House voted earlier this month to block the rule. Opponents are also preparing lawsuits that will add to an already long trail of litigation over the government’s powers to regulate water, an issue the Supreme Court has taken up twice, with confusing results, since 2001.

At nearly 300 pages, the final rule still pledges to avoid regulation of most ditches, groundwater or require more permits for agriculture activities, according to Farm Futures.

The American Farm Bureau Federation (AFBF) said based on EPA’s previous statements about the WOTUS proposal, the agency's assurances that farmer concerns have been addressed provides "little comfort."

"The process used to produce this rule was flawed," AFBF President Bob Stallman said in a press statement. "The EPA’s proposal transgressed clear legal boundaries set for it by Congress and the Courts and dealt more with regulating land use than protecting our nation’s valuable water resources."

EPA said it sets "physical and measurable" boundaries for CWA jurisdiction of waters near rivers and lakes as well as their tributaries. The rule also "limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream," EPA said, "so ditches that are not constructed in streams and that flow only when it rains are not covered."

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

House Votes to Kill WOTUS

Posted May 15, 2015

The House approved by a 261-155 vote H.R. 1732, the Regulatory Integrity Protection Act, to withdraw the proposed "waters of the United States" rule, according to a Farm Futures article available here. Agri-Pulse also published an article available here and Feedstuffs here.

Several agriculture groups including the National Cattlemen’s Beef Association and American Farm Bureau Federation (AFBF) supported the House vote.

Agriculture groups have been concerned about the EPA and Army Corps of Engineers' proposal, because it could lead to additional water regulations, making it difficult to continue farming and ranching effectively. Others are concerned that the proposal may infringe on private landowners' rights.

The legislation requires EPA and the Army Corps of Engineers not only halt moving forward on the currently proposed rule, but also begin working with states and local stakeholders to develop a new and proper set of recommendations. One of the biggest complaints has been a lack of coordinated effort with state and local authorities and the federal overexpansion of jurisdiction from rights previously held at the lower levels, according to Feedstuffs.

“It was refreshing to see members of Congress order regulators back to the drawing board, with an admonition to listen to the very real concerns of people who would have their farm fields and ditches regulated in the same manner as navigable streams,” said Bob Stallman, president of the AFBF.

The rule is supposed to clarify what streams, ponds, wetlands, ditches and other features are regulated under the law as “waters of the United States” (WOTUS), according to Agri-Pulse.

Administration officials said they've revised the definitions in the proposed rule to address an array of concerns expressed by farm groups and other interests. However, Republicans argued that if the rule's changes were significant enough to satisfy opponents, the administration would have proposed an entirely new version. 

"This is a taking of private property," said Rep. Garrett Graves, R-La. "It's people's homes. It's people's farms, it's people's small businesses." 

Rep. Donna Edwards, D-Md., said Republicans were trying to stop the EPA and Army Corps of Engineers “from doing their jobs. … No new rules and no clean water, what a shame.”

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Meat Packer Warned of CWA Violations

Posted April 13, 2015

An environmental group is threatening to sue Bartels Packing, a Lane County slaughterhouse and meat packaging firm, for multiple violations of the federal Clean Water Act, according to a Register Guard article available here. The Eugene Weekly also published an article available here and Corvallis Gazette-Times here.

Portland-based Willamette Riverkeeper says it sent the lawsuit warning notice to Bartels Packing.

The notice lists four violations documented by the state Department of Environmental Quality from 2010 to 2014. Each claims that wastewater or blood waste entered waterways near Fern Ridge Lake. The lake discharges into the Willamette River.

According to a European Commission survey of wastes spread on land, blood applied to land can improve levels of nitrogen, potassium and phosphorus. But if the percentage of blood in the wastewater is too high, then those nutrients in excess or in waterways can affect the water and fish. The survey says if the blood waste is not incorporated into the land as soon as possible, it can lead to nuisance odors, according to Eugene Weekly.

Kandi Bartels, executive vice president of Bartels, said the company will address the notice with Willamette Riverkeeper, according to Register Guard.

“They’ll learn the truth and hopefully will understand where we’re coming from,” she said.

But Bartels also said the notice is the latest in a “stampede” of what she later called “character assassinations” against the company. “We take no malice against them, but we have a business to run,” Bartels said. “We take these issues seriously.”

Bartels sells meat as Bartels Farms. It is one of only two U.S. Department of Agriculture-­inspected slaughterhouses in Lane County. The other is Mohawk Valley Meats in Springfield.

Riverkeeper says in its letter that it will file suit in 60 days unless Bartels addresses the CWA violations, seek injunctive relief (a court order to stop activities) and “$37,500 in civil penalties for each day of violation,” according to Eugene Weekly.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

CRS Released WOTUS Report

Posted March 24, 2015

On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced a proposed rule defining the scope of waters protected under the Clean Water Act (CWA).

The proposal revises regulations that have been in place for more than 25 years. Revisions are proposed in light of 2001 and 2006 Supreme Court rulings that interpreted the regulatory scope of the CWA more narrowly than previously, but created uncertainty about the precise effect of the Court’s decisions.

According to the agencies, the proposed rule revises the existing administrative definition of “waters of the United States” consistent with legal rulings and science concerning the interconnectedness of tributaries, wetlands, and other waters and effects of these connections on the chemical, physical, and biological integrity of downstream waters. Waters that are “jurisdictional” are subject to the multiple regulatory requirements of the CWA. Non- jurisdictional waters are not subject to those requirements.

This report describes the proposed rule and includes a table comparing the existing regulatory language that defines “waters of the United States” with the proposed revisions. The proposal focuses on clarifying the regulatory status of waters located in isolated places in a landscape. It does not modify some categories of waters that currently are jurisdictional by rule (traditional navigable waters, interstate waters and wetlands, the territorial seas, and impoundments).

Congressional hearings have been held and are continuing in the 114th Congress. The FY2015 omnibus appropriations act (H.R. 83/P.L. 113-235) includes a provision directing withdrawal of a controversial related interpretive rule on agriculture exemptions, but it contains no restriction on the “waters of the U.S.” proposal. A bill to bar issuance of the rule has been introduced in the 114th Congress (H.R. 594). The House passed similar legislation in the 113th Congress (H.R. 5078). Other 113th Congress bills included S. 2496, H.R. 4923, H.R. 5071, and H.R. 5171.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

WOTUS Concerns Addressed at House Panel

Posted March 20, 2015

Farmers and leaders from agriculture and government agencies expressed their concerns about the Environmental Protection Agency’s (EPA) proposed Waters of the United States (WOTUS) rule at a House Agriculture Conservation and Forestry Subcommittee, according to an Agri-Pulse article available here. Brownfield Ag News also published an article here and Hoosier Ag Today here.

Members on one panel spoke on behalf of the National Association of State Departments of Agriculture, National Association of Counties, National Association of State Foresters and Association of Clean Water Administrators.

A second panel included representatives of the American Farm Bureau Federation, the Waters Advocacy Coalition, and the Pennsylvania Rural Electric Association, and farmers raising crops and livestock in Mississippi and Illinois.

Steve Foglesong, an Illinois livestock and crop farmer, said his main concern is the rule’s lack of clarity, according to Brownfield Ag News.

“We hear about exemptions that are there but until we’ve seen it in print—and probably more importantly, seen it in action—we’re not going to understand exactly how it’s supposed to affect us,” said Foglesong.

EPA Administrator Gina McCarthy told the National Farmers Union that she is renaming the Waters of the U.S. rule the Clean Water Rule, according to Hoosier Ag Today.

McCarthy said that she wishes EPA would have done a better job with its Clean Water Rule by calling it WOTUS instead of the Clean Water Rule, being more clear about what EPA was and was not proposing, and talking to farmers and others before EPA put out the interpretive rule.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

WOTUS Interpretive Rule Withdrawn

Posted February 3, 2015

The Environmental Protection Agency (EPA) and Army Corps of Engineers issued a memorandum of understanding to withdraw the Waters of the U.S. (WPYUS) Interpretive Rule, according to a Farm Futures article available here. Hoosier Ag Today also published an article available here and Ag Wired here.

In December, Congress requested that EPA and Army Corps withdraw the interpretive rule in its "Cromnibus" funding legislation.

The rule was intended to clarify normal farming activities exempt from the Clean Water Act, according to Hoosier Ag Today.

“Farmers have a lot of concerns about WOTUS,” said Maryland farmer Chip Bowling, president of NCGA. “What we need is clarity. The interpretive rule actually made things less clear. We hope that the withdrawal of the interpretive rule will allow us to get to the true matter at hand: how the Clean Water Act is administered.”

The National Milk Producers Federation was also pleased with the withdrawal, according to Ag Wired.

“Our concern with the initial proposal from last year is that it could have altered the long-standing and productive relationship between farmers and the USDA’s Natural Resources Conservation Service, in a way that would have made it harder for farmers to implement water conservation measures,” said Jamie Jonker, NMPF’s Vice President for Sustainability & Scientific Affairs. “We’re pleased the EPA and Army have recognized that this regulation could have backfired, and that they’ve taken the necessary step to withdraw it.”

Last fall, the senators wrote that the proposal also could "fundamentally change the relationship between the Department of Agriculture and farm families" in a letter, according to Farm Futures.

The effective withdrawal date was January 29. The Waters of the U.S. proposal is still under consideration by EPA and the Army Corps of Engineers. The final comment period closed November 14.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

WOTUS Joint Committee Hearing Set for Feb 4

Posted January 26, 2015

The House and Senate committees have set a joint Feb. 4 hearing on the Environmental Protection Agency’s (EPA) proposed Clean Water Act rule, according to an Agri-Pulse article available here. WNAX also published an article available here.

The joint hearing involves the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee. Senate Ag Committee Chairman Pat Roberts is also conferring with Environment Chairman James Inhofe on the issue, according to WNAX.

Administration officials hope the rule finalizes this spring, would re-define what streams, ponds, ditches and other areas fall under the Clean Water Act's jurisdiction as waters of the United States (WOTUS), according to Agri-Pulse.

Last fall the House voted 262-152 to approve a bill that would have killed the rule, but the legislation never advanced in the Senate, which was then controlled by Democrats.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Senators Requesting Immediate Withdrawal of New CWA Regulations

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Posted October 24, 2014

U.S. Senator Thad Cochran (R-Miss.) and Republican members of the Senate Agriculture Committee have requested that the newly released agriculture rule released in conjunction with the Waters of the United States (WOTUS) proposal be immediately withdrawn, according to a press release available here. Agri-Pulse also published an article available here.

Agriculture Committee Ranking Member Cochran, Republican Leader Mitch McConnell (R-Ky.), Pat Roberts (R-Kan.), Saxby Chambliss (R-Ga.), John Boozman (R-Ark.), John Hoeven (R-N.D.), Mike Johanns (R-Neb.), Chuck Grassley (R-Iowa) and John Thune (R-S.D.) have written a letter asking the Environmental Protection Agency (EPA), Army Corps of Engineers, and U.S. Department of Agriculture (USDA) to provide an “update on implementation of the agriculture Interpretive Rule and requested its immediate withdrawal.”

“We have heard from farmers, ranchers, and other rural constituents about the Interpretive Rule and are deeply concerned it has created great confusion about what agriculture activities are exempt from regulation under the Clean Water Act,” the Senators wrote in a letter.

The senators said that the WOTUS regulations would bring more waters including, streams, creeks, wetlands, ponds, and ditches under the jurisdiction of the Clean Water Act (CWA) subjecting them to EPA permitting requirements. The agriculture Interpretive Rule outlines only 56 activities out of more than 160 conservation practices that previously qualified for the normal farming and ranching exemption, according to Agri-Pulse.

“Beyond adding confusion and uncertainty, the Interpretive Rule would fundamentally change the relationship between the Department of Agriculture and farm families. Over decades of farm policy, USDA has established an unprecedented relationship of trust with farmers, ranchers, and rural stakeholders. This unique relationship is built on voluntary conservation programs and a mutual commitment to protecting natural resources and keeping land in agriculture. Bringing USDA into the Clean Water Act permitting process would profoundly shift the nature of this successful approach by dismantling a longstanding partnership between the Federal government and agriculture community,” the Senators wrote.

Now, the Senators are calling for more “transparency and stakeholder involvement.”

“As the administration continues to extend the timeframe for finalization of the flawed WOTUS proposal, any further discussion of how agricultural activities may fit into this framework must allow for a transparent and public process in which the voice of American agriculture can be heard,” the Senators' letter concluded.

For more information, a copy of the Senators’ letter is available here.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

EPA Decided Against Appealing Federal Ruling

Posted September 23, 2014

The Environmental Protection Agency (EPA) has decided to not appeal the key federal ruling in favor of Lois Alt, a West Virginia farmer, according to an American Farm Bureau Federation (AFBF) release available here. A previous blog post on the case is available here.

In October 2013, the U.S. Court for the Northern District of West Virginia earlier ruled in favor of farmer Lois Alt. The court rejected EPA’s contention that the “Clean Water Act regulates ordinary stormwater runoff from the farmyard (non-production areas) at large livestock or poultry farms.”

A federal court has never addressed the question of stormwater runoff from farms so the ruling carries implication for tens of thousands of poultry and livestock farms. EPA’s “voluntary dismissal” is most likely the result of the agency’s desire to avoid a loss in the appellate court. The appeal could still move forward if any of the five environmental groups that intervened in support of EPA wish to move forward without the government.

“EPA knows its effort to regulate perfectly well-run farms cannot withstand legal scrutiny, and the agency doesn’t quite know how to deal with that,” AFBF President Bob Stallman said. Both AFBF and the West Virginia Farm Bureau joined the suit on the side of Alt. “Apparently, the agency would rather move on and continue pursuing its regulatory agenda farm-to-farm, but not defend it in court.” Although EPA’s motivation seems self-evident, said Stallman, “you wouldn’t know it from the agency’s spin machine.”

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

EPA Amends CWA Regulations

Posted August 28, 2014

The Environmental Protection Agency (EPA) has finalized amendments to the Clean Water Act (CWA) regulations to codify that under the National Pollutant Discharge Elimination System (NPDES) program, permit applicants must use “sufficiently sensitive” analytical test methods when completing an NPDES permit application and the Director must prescribe that only “sufficiently sensitive” methods be used for
EPA has modified existing NPDES application, compliance monitoring, and analytical methods regulations. 

The amendments in this rulemaking affect only chemical-specific methods and do not apply to the Whole Effluent Toxicity (WET) methods or their use.

The regulations are in effect September 18, 2014.

The Federal Register is available here.