Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22

Posted February 18, 2016

Agriculture in the Mid-South is uniquely impacted by changes and developments in state, federal, and international laws and policies. Hosted by the Agricultural & Food Law Consortium, the Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22 in Memphis, TN, is part of a long-term effort to provide relevant and timely agricultural and environmental legal research and information to attorneys, lenders, accountants, tax consultants, students and other agricultural professionals involved in the agriculture and aquaculture industries in the southern U.S.   

Conference highlights and panel discussions include:

- Agricultural & Environmental Law Updates

- Managing Risk in a Faltering Ag Economy

- Handling an Ag Bankruptcy

- Navigating Wetlands Issues

- Legal Issues & Liability in Agricultural Nutrient Management

This year's program is approved for six hours of CLE credit in Alabama, Mississippi, and Tennessee, including one hour of ethics. Further, it has been submitted for CLE credit in Arkansas and for real estate continuing education in Arkansas.

The conference kicks off Thursday, April 21, with a “BBQ & Beer” reception at Memphis' famous Rendezvous barbecue restaurant. 

To register for the conference, please click here. 

Federal regulations issued for large-scale fish farming

Posted January 21, 2016

The first-ever federal regulations for large-scale fish farming in the ocean were recently issued, opening a new frontier in the harvesting of popular seafood species such as red drum, tuna and red snapper.

The new rules allow the farming of fish in federal waters of the Gulf of Mexico. The rules were announced in New Orleans by the National Oceanic and Atmospheric Administration.

NOAA Administrator Kathryn Sullivan said the Gulf rules could spur similar rules in other U.S. waters. She said it was time for the United States to open up this new market, which could help the U.S. meet its seafood demands.

Fish farming, however, is contentious, with fishermen and environmentalists warning it can harm the marine environment and put fishermen out of work.  Opponents maintain that the Gulf of Mexico has changed significantly, with the effects on fisheries, habitat and communities from hurricanes such as Katrina in 2005, and the 2010 oil spill, all still emerging.

Opponents also contend industrial, open-ocean aquaculture can be environmentally damaging. Problems include the release of untreated waste, increased risks of diseases and parasites in wild fish by transmission from farmed fish and escapes of farmed fish altering wild populations. Furthermore, cages used to contain fish are flow-through, meaning anything from the pens can go directly into Gulf waters, including excess feed, fish wastes, and any chemicals. 

Typically, offshore farming is done by breeding fish in large semi-submersible pens moored to the seafloor. The practice is common in many parts of the world, and some feel the United States has fallen behind. About 90 percent of the seafood consumed in the United States is imported and more than half of that is farmed. 

The new rules allow up to 20 fish farms to open in the Gulf and produce 64 million pounds of fish a year. The farms can start applying for 10-year permits starting in February.

Sullivan said the fish farms would be kept away from sensitive habitats and fishermen would be allowed to fish near them. She envisioned little competition between the farms and fishermen.

More information is available here.

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.

Ruling mandates stricter ag runoff limits

Posted August 24, 2015

A Sacramento Superior Court judge has ordered the state to write stricter controls for agriculture water runoff in Monterey, San Luis Obispo and Santa Barbara Counties, according to The Californian article available here. KCBX also published an article available here and Monterey County Weekly here.

Judge Timothy Frawley issued his decision on Aug. 10, following a May 15 hearing, resulting from 2013 lawsuit filed against the California Water Resources Control Board by five nonprofit groups and a Gonzales woman whose tap water is contaminated with ag waste.

Their concern is that pesticides were polluting water supplies. Specifically, the group contended a conditional waiver from the Central Coast Regional Water Quality Control Board didn't provide enough environmental protections, according to KCBX.

The judge in this case agrees and said new rules need to be developed to protect both surface and groundwater supplies.

Current research contends that nitrates and phosphates present in ag runoff promote the growth of blooms in the ocean that produce toxics capable of poisoning marine mammals and birds, according to The Californian.

Judge Frawley issued a peremptory writ of mandate, ordering the State Water Resources Control Board to set aside its Ag Order and reconsider the conditional waiver of waste discharge requirements and its monitoring and reporting program.

He agreed with the environmental groups that the state board’s modified waiver is “not in the public interest because there is no evidence it will lead to quantifiable improvements in water quality or arrest the continued degradation of the Central Coast region’s water.”

The state water board is still reviewing the court's decision and considering an appeal, according to spokesman Tim Moran, as stated in the Monterey County Weekly. 

Sacramento-based attorney Tess Dunham representing Western Growers and the Grower-Shipper Association on the ag waiver says an appeal is definitely on the table.

"We are disappointed with the decision," she says. "We don't believe that the judge was correct in this case. We think he got it wrong." 

For more information on environmental law, 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.

Court date set for Des Moines water quality suit

Posted July 20, 2015

The Des Moines Water Works lawsuit against three northwest Iowa counties over water quality is scheduled to be heard by a federal trial judge, beginning Aug. 8, 2016, according to a Des Moines Register article available here. Siouxland Matter also published an article available here.

U.S. District Court Judge Mark Bennett expects the bench trial in Sioux City to last up to two weeks.

The Des Moines utility is suing Buena Vista, Calhoun and Sac counties claiming that the drainage districts present act as conduits for nitrates to move from farm fields into the Raccoon River, one of two sources of drinking water for 500,000 residents in the Des Moines metro area, according to Siouxland Matters.

Ag leaders have encouraged growers to adopt more conservation practices outlined under the voluntary Iowa Nutrient Reduction Strategy to keep nitrogen and other nutrients on farm fields. In the last year, the state provided $9.6 million legislative session for conservation and water quality initiatives, according to The Des Moines Register.

Chris Hensley, a Des Moines City Council member and Iowa Clean Water Partnership leader, said the lawsuit is “not the right path forward.”

“Legal action will create a divide between rural and urban Iowa and do nothing to reduce nitrate levels. Collaboration will increase participation in conservation efforts, such as the Nutrient Reduction Strategy, and make a positive impact on water quality.

Bill Stowe, the utility’s CEO, said the utility is confident the lawsuit “will lead to greater environmental protections in Iowa.”

Stowe criticized what he called farm propaganda on water quality, pointing to TV ads from the newly created Iowa Partnership for Clean Water. Instead, he said, the utility wants “substantive discussions about what will protect the quality of the Des Moines and Raccoon rivers.”

Stowe said recent high nitrate levels prompted the Des Moines utility to run its nitrate removal plant for more than 150 days, longer than ever before. It stopped using the plant late last week.

A final pretrial conference is scheduled for July 26, 2016, according to Siouxland Matters. 

For more information on water law, please visit the National Agricultural Law Center’s website here.

Lawmakers introduce revised federal drought relief bill

Posted June 29, 2015

California lawmakers passed a new budget that would make a range of policy changes intended to address the drought, according to an article by the LA Times available here. Daily Democrat also published an article available here and AgWeb here.

The changes would allow faster construction of water recycling projects, increase fines for water wasters and empower the state to force failing water agencies to consolidate.

The bill by Republican Congressman David Valadao of Hanford comes closer to what Democratic Sen. Dianne Feinstein pushed through the Senate last year, but there are also considerable differences. For example, the House bill scraps efforts to restore a Chinook salmon fishery in the San Joaquin River, which was the goal of a 2006 lawsuit settlement, according to AgWeb.

Valadao said Congress needs to act because the consequences of California's drought are spreading.

"Inaction will result in the collapse of our domestic food supply," he said.

The California Farm Bureau Federation voiced its support for water legislation—the Western Water and American Food Security Act of 2015, according to Daily Democrat.

“There’s no time to waste,” CFBF President Paul Wenger said in a press release. “The noose is tightening around many California farms and ranches, as water supplies become more restricted. All Californians and all Americans depend on the food and farm products grown in our state, and will benefit from policies that add flexibility to California water management.”

The bill requires agencies to consider alternatives to reduced pumping, such as installing temporary barriers to prevent saltwater intrusion or removing non-native fish that eat protected fish such as the delta smelt and certain salmon species.

Democratic Sen. Barbara Boxer of California criticized the House bill, according to AgWeb.

"It's unfortunate that House Republicans — with much fanfare — are rolling out a bill that is the same-old, same-old and will only reignite the water wars," Boxer said.

For more information on water law, 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.

IDWR to Conduct Winter Aquifer Recharge Effort

Posted September 23, 2014

The Idaho Department of Water Resources (IDWR) and three irrigation water providers will conduct the state’s first extensive winter aquifer recharge effort, according to a Capital Press article by John O’Connell available here.

American Falls Reservoir District No. 2, Southwest Irrigation District and Twin Falls Canal Co. joined the pilot project because of a new tiered payment program that awards greater payments per acre foot for longer durations of recharge. The program utilizes a state-held recharge right, which remains a priority throughout winter to maintain a base flow of 500 cubic feet per second below Milner.

IDWR deputy director Mat Weaver said the state has an annual goal of recharging at least 100,000 acre feet with a scheduled increase of 250,000 acre feet in the next few years. However, IDWR has only averaged 75,000 acre feet per year since 2009. The tiered structure is expected to make recharge more cost-effective during winter with no competition with canal maintenance but weather is a hassle.

IDWR is also encouraging Northside Canal Co. to participate in the project and address concerns about water freezing in hydropower turbines on the company’s main canal. Eventually, Harmon hopes to recharge every other year, rotating shifts with Northside, and conducting more in-depth system maintenance in off years.

For more information on water law, 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.