Environmental Law Annotations (Agricultural Law and Tax)

This page contains summaries of significant recent court opinions involving environmental issues of importance to agricultural producers and agribusinesses.

Posted September 23, 2017

Prior Converted Cropland Exception to CWA Jurisdiction Inapplicable. The plaintiff, a developer, obtained title to a 100-acre tract on the southeast side of Chicago metro area in 1995. The local town then passed a zoning ordinance allowing development of the property. The tract was divided into three sections - 25 acres were to be developed into 168 townhomes; 61 acres to be developed into 169 single-family homes; and 14 acres in between the other acreages to function as a stormwater detention area. The townhomes and water detention area was to be developed first and then the single-family housing. Construction of the townhomes began in 1996, and the single-family housing development was about to begin when the defendant designated about 13 acres of the undeveloped property as “wetlands” and asserted regulatory jurisdiction under the Clean Water Act (CWA). The defendant claimed jurisdiction on the basis that the “wetland” drained via a storm sewer pipe to a creek that was a tributary to a river that was a navigable water of the U.S. The plaintiff administratively appealed the defendant’s jurisdictional determination to the Division Engineer who agreed that the District Engineer failed to properly interpret and apply the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. 715 (2006). On reconsideration, the District Engineer issued a second approved jurisdictional determination in 2010 concluding that the tract had a significant nexus to the navigable river. The plaintiff appealed, but the Division Engineer dismissed the appeal as being without merit. In 2011, the plaintiff sought reconsideration of the defendant’s appeal decision because of a 1993 prior converted cropland designation that excluded a part of the 100-acres from CWA jurisdiction. Upon reconsideration, the District Engineer issued a third jurisdictional determination in 2012 affirming its prior determination noting that farming activities had ceased by the fall of 1996 and wetland conditions had returned. The plaintiff appealed on the basis that the “significant nexus” determination was not supported by evidence. The Division Engineer agreed and remanded the matter to the District Engineer for supportive documentation and to follow the defendant’s 2008 administrative guidance. The District Engineer issued a new jurisdictional determination with supportive evidence, including an 11-page document that had previously not been in the administrative record. This determination, issued in 2013, constituted a final agency determination, from which the plaintiff sought judicial review. The plaintiff claimed that the defendant didn’t follow its own regulations, disregarded the instructions of the Division Engineer, and violated the Administrative Procedures Act (APA) by supplementing the record with the 11-page document. The court noted that existing regulations allowed the Division Engineer, on remand, to instruct the District Engineer to supplement the administrative record on remand and that the limitation on supplementing the administrative record only applied to the Division Engineer. The court also determined that the supplemental information did not violate the Division Engineer’s remand order, and that the supplemental information had been properly included in the administrative record and was part of the basis for the 2013 reviewable final agency determination. The court also upheld the defendant’s nexus determination because it sufficiently documented a physical, chemical and biological impact of the navigable river. The court also determined that the prior converted cropland exemption did not apply because farming activities had been abandoned for at least five years and wetland characteristics returned. The court noted that the defendant and the Environmental Protection Agency (EPA) had jointly adopted a rule in 1993 adopting the NRCS exemption for prior converted cropland. While the joint regulation did not refer to the abandonment exception, the defendant and EPA did explain in the Federal Register that they would use the NRCS abandonment provisions such that prior converted cropland that is abandoned and exhibits wetland characteristics are jurisdictional wetlands under the CWA. The court noted that prior caselaw had held that the CWA’s exemption of “prior converted croplands” included the abandonment provision, and that it would apply the same rationale in this case. The court noted that the specific 13-acre parcel at issue in the case had not been farmed since 1996, and that conversion to a non-ag use did not remove the abandonment provision. The plaintiff also claimed that the wetlands at issue were “artificial” wetlands (created by adjacent development) under 7 C.F.R. §12.2(a) that were not subject to the defendant’s jurisdiction. However, the court noted that the defendant never adopted the “artificial wetland” exemption of the NRCS and, therefore, such a classification was inapplicable. The court granted the defendant’s cross motion for summary judgment. Orchard Hill Building Co. v. United States Army Corps of Engineers, No. 15-cv-06344, 2017 U.S. Dist. LEXIS 151673 (N.D. Ill. Sept. 19, 2017).

Posted September 21, 2017

Animal Feeding Operation Did Not Need Pollutant Discharge Permit. Rolling Green Family Farms, an animal feeding operation applied to the North Dakota Department of Health, the defendant in this case, for an animal feeding operation permit. The application stated that Rolling Green planned to have a 9,056-head swine sow facility. The defendant issued a public notice of its intent to issue a permit and held a public hearing. Over 130 people attended the hearing including the surrounding landowners, plaintiffs in this case. After the comment period ended, the defendant issued its response and subsequently issued the animal feeding operation permit to Rolling Green. The landowners appealed to the district court arguing that the permit was not in accordance with the law because a North Dakota pollutant discharge elimination system (NDPDES) permit was required. The district court affirmed the defendant’s permit decision and the plaintiffs again appealed. The plaintiffs argued that N.D. Admin. Code §§ 33-16-03.1-05(1) and 33-16-03.1-03(4) required Rolling Green to obtain a NDPDES permit because it is a concentrated animal feeding operation housing more than 2,500-head of swine. The defendant claimed that current EPA rules require only discharging facilities to obtain an NPDES permit. The court determined that even if the rules could be read as requiring a non-discharging facility to apply for an NPDES permit, such requirement would not be grounds for denying this permit or issuing any type of enforcement action against the facility. In addition, the court pointed out that the federal Clean Water Act regulations only require operations that actually discharge pollutants to apply for a pollutant discharge elimination system permit. Thus, the court determined that the defendant should amend its rule to make it consistent with the federal regulation, but that the current state rule would remain in effect until amended. However, the court also determined that reversing the decision and remanding for the defendant to apply its own state rules would be a useless act because Rolling Green could challenge the denial under N.D.C.C. § 23-01-04.1(5) because the state rule is more stringent than the corresponding federal rule. As a result, the court concluded that the defendant did err in failing to apply the state administrative rules but reversing the decision would be futile because Rolling Green could successfully challenge the denial. Consequently, the judgment of the district court was affirmed. Coon v. N.D. Dep’t of Health, No. 20170089, 2017 ND 215 (N.D. Sup. Ct. Aug. 30, 2017).

Posted August 19, 2017

Fact Issues Remain In WOTUS Jurisdiction Case. The EPA issued an enforcement order in early 2012 for the plaintiff’s work on his property done to flatten out the property so it could be developed. The EPA claimed that the defendant had filled-in streams on the property without first obtaining a dredge and fill permit under §404 of the Clean Water Act (CWA). The EPA claimed that the plaintiff had placed over 100,000 cubic yards of rock, dirt and debris on the property that buried almost 2,000 linear feet of streams. The EPA sought a fine in excess of $400,000. On cross motions for summary judgment, the court stated that it would accept either of two definitions for “waters of the United States” (WOTUS) – (1) a definition including “relatively permanent” waterways; or (2) a definition including anything that has a “significant nexus” to navigable waters. The plaintiff claimed that because one stream in question emptied into a hayfield and had no bank or bed of high-water mark, any connection to larger waterways downstream was broken resulting in no “relatively permanent water” flowing across the hayfield. The EPA claimed that they were required to look above and below breaks in stream connections when determining if areas such as the hayfield are “navigable waters of the United States” and that at least one of the “streams” constituted a “relatively permanent water.” The court ruled that the EPA had not violated the plaintiff’s due process rights or acted with political retribution, and also determined that factual matters remained regarding EPA jurisdiction over the property under the CWA based on either definition of WOTUS. Foster, et al. v. United States Environmental Protection Agency, No. 14-16744, 2017 U.S. Dist. LEXIS 129103 (S.D. W. Va. Aug. 14, 2017).

Posted July 22, 2017

Government’s Land Ownership Enough to Convey CERCLA Liability. The plaintiff’s predecessor operated a molybdenum open pit mine largely on land that the defendant, the federal government, owned. The plaintiff’s predecessor disposed of 324 million tons of rock waste and 100 million tailings on the property. The property was listed as a “Superfund” site in accordance with the Comprehensive Environmental Response Compensation Liability Act (CERCLA). The plaintiff began the process of cleaning up the waste rock that had been dumped on the site along with tailings, and the estimated cleanup cost was pegged between $517 and $889 million (not including the costs that the plaintiff had already incurred). The plaintiff sued in 2013, claiming that the Department of the Interior and the Department of Agriculture were liable for the cleanup cost because they encouraged and financed the predecessor’s mining operation and also financed the predecessor’s mining and waste disposal activities at the site which resulted in soil and water contamination. The trial court determined that the defendant’s ownership of the land was insufficient to convey CERCLA liability and granted the defendant’s motion for summary judgment. On appeal, the appellate court reversed. The appellate court noted that the term “owner” for CERCLA liability purposes covers entities that are fee owners, such as the defendant. The appellate court took particular note that the defendant did much more than passively hold title by encouraging mining activities on the land, loaning funds so that the predecessor’s mining operation could function, and approving permits. The court noted that those facts meant that the defendant had actual knowledge of mining activities on its property. While the defendant was found liable as an “owner” under CERCLA, the appellate court determined that the defendant was not also liable under CERCLA as an “arranger.” On that point, the appellate court noted that the defendant neither owned nor possessed the waste rock or tailings from the predecessor’s mining activities as required by CERCLA’s arranger liability provision. Chevron Mining, Inc. v. United States, No. 15-2209, 2017 U.S. App. LEXIS 12959 (10th Cir. Jul. 19, 2017).

Posted April 14, 2017

EPA Rule Exempting Farms From Air Release Reporting Vacated. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA), the federal government is to be notified when large quantities of hazardous materials are released into the environment. Once notified, the Environmental Protection Agency (EPA) has discretion to take remedial actions or order further monitoring or investigation of the situation. In 2008, the EPA issued a final regulation exempting farms from the reporting/notification requirement for air releases from animal waste on the basis that a federal response would most often be impractical and unlikely. However, the EPA retained the reporting/notification requirement for Confined Animal Feeding Operations (CAFOs) under EPCRAs public disclosure rule. Various environmental activist groups challenged the exemption in the final regulation on the basis that the EPA acted outside of its delegated authority to create the exemption. Agricultural groups claimed that the carve-out for CAFOs was also impermissible. The environmental groups claimed that emissions of ammonia and hydrogen sulfide (both hazardous substances under CERCLA) should be reported as part of furthering the overall regulatory objective. The court noted that there was no clear way to best measure the release of ammonia and hydrogen sulfide, but noted that continuous releases are subject to annual notice requirements. The court held that the EPA’s final regulation should be vacated as an unreasonable interpretation of the de minimis exception in the statute. As such, the challenge brought by the agriculture groups to the CAFO carve out was mooted and dismissed. Waterkeeper Alliance, et al. v. Environmental Protection Agency, No. 09-1017, 2017 U.S. App. LEXIS 6174 (D.C. Cir. Apr. 11, 2017).

Posted April 13, 2017

Farm Groups Have Standing To Bring “Reverse” FOIA Suit. In 2008, the Government Accounting Office (GAO) issued a report stating that the Environmental Protection Agency (EPA) had inconsistent and inaccurate information about confined animal feeding operations (CAFOs), and recommended that EPA compile a national inventory of CAFO’s with NPDES permits. Also, as a result of a settlement reached with environmental activist groups, the EPA agreed to propose a rule requiring all CAFOs to submit information to the EPA as to whether an operation had an NPDES permit. The information required to be submitted had to provide contact information of the owner, the location of the CAFO production area, and whether a permit had been applied for. Upon objection by industry groups, the proposed rule was withdrawn and EPA decided to collect the information from federal, state and local government sources. Three environmental activist groups submitted Freedom of Information Act (FOIA) requests to obtain the EPA’s records containing CAFO information. In response, the EPA released information gathered from 28 states and from the EPA’s data systems. The released information contained the CAFO owner’s name and mailing address, email address and primary telephone number. When ag groups were notified of the release, the EPA agreed to look into whether it had disclosed information that was not publicly available that could trigger FOIA privacy concerns. The EPA determined that the records released that had been obtained from 19 states were not eligible for exemption from FOIA under 5 U.S.C. §552(b)(6) because the information was publicly available over the internet. The EPA obtained additional information about CAFOs, and various environmental activist groups filed a FOIA request. Some of the requested information include the CAFO owner’s legal name and mailing address, email address, and telephone number. EPA released information gathered from 28 states, and from its own data systems. The plaintiffs, two national ag groups, sued seeking an order to bar the EPA from making additional disclosures of personal information already collected, and recalling the personal information already released. The plaintiffs claimed that the EPA abused its discretion and acted arbitrarily and capriciously by releasing the information. Several environmental activist groups intervened in support of the disclosure. The trial court granted summary judgment for the EPA on the basis that the plaintiff lacked standing. On appeal, the court reversed, finding that that trial court improperly addressed the merits of the plaintiffs’ claim rather than the standing issue, and noted that the claims were still live because the EPA had proposed to release more information from seven states (including Minnesota). The appellate court noted that an individual’s interest in controlling the dissemination of information regarding personal matters does not disappear simply because the information may be publicly available in some form. Here, the EPA made it much easier for the activist groups to identify and target particular CAFOs. Accordingly, the appellate court held that the disclosure would invade a substantial privacy interest of the CAFO owners and further little public interest recognizable under FOIA. As such, the records were exempt from public disclosure, and the EPA had abused its discretion in determining that the exemption from mandatory FOIA disclosure did not apply. The court remanded on the issue of injunctive relief to bar the EPA from disclosing the additional records. American Farm Bureau Federation v. United States Environmental Protection Agency, No. 15-1234, 2016 U.S. App. LEXIS 16623 (8th Cir. Sept. 9, 2016).

Note: On March 27, 2017, the court approved a settlement agreement ending the litigation between the parties. Under the terms of the settlement, only the city, county, zip code and permit status of an operation will be released. EPA is also required to conduct training on FOIA, personal information and the Privacy Act.

Posted March 29, 2017

Court Says Endangered Species Act Applies to Threatened Species On Private Land With No Interstate Connection. The plaintiffs were landowners in Utah whose experienced problems with the prevalence of the Utah prairie dog damaging their tracts. The Utah prairie dog is a threatened species under the Endangered Species Act (ESA) and has approximately 70 percent of its population on private land. The Utah prairie dog is found only in Utah, and its population has increased about 12 times over since 1973. As a threatened species, the U.S. Fish and Wildlife Service (USFWS) issued a special rule regulating the “taking” of the Utah prairie dog. Under the rule, “taking” was limited to agricultural land, property within one-half mile of conservation land and areas where the species creates serious human safety hazards or disturb the sanctity of significant cultural or burial sites. Incidental taking is allowed if it occurs as part of standard agricultural practices. The plaintiffs challenged the rule as applied to private land as not authorized under either the Commerce Clause or the Necessary and Proper Clause of the U.S. Constitution and sought declaratory and injunctive relief. The trial court granted the plaintiffs motion for summary judgment on the basis that the Commerce Clause does not authorize the Congress to enact legislation authorizing the regulation of the taking of a purely intrastate species without a substantial effect on interstate commerce and the Necessary and Proper Clause did not authorize the regulation of taking of the species because the regulation is not essential to the ESA’s economic scheme. The government appealed. On review, the appellate court reversed. The appellate court determined that the “substantial effect” on interstate commerce was to be determined under the rational basis standard. Under that standard, the appellate court held that the Congress has the power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce. Thus, because (in this court’s view) the Commerce Clause authorized the regulation of noncommercial purely intrastate activity that is an essential part of a broader regulatory scheme, the “take” regulation was constitutional. The appellate court noted that approximately 68 percent of ESA-protected species have habitats that do not cross state borders, as such the court reasoned that the ESA could be severely undercut if the ESA only allowed protection to those species whose habitats were in multiple states. People for the Ethical Treatment of Property Owners v. Unites States Fish and Wildlife Service, No. 14-4151, 2017 U.S. App. LEXIS 5440 (10th Cir. Mar. 29, 2017).

Posted March 7, 2017

County Decision Approving CAFO Upheld. The defendant approved a Concentrated Animal Feeding Operation (CAFO) conditional use permit (CUP) for a 5,500-head dairy operation. A nearby landowner challenged the defendant’s decision on the basis that the defendant had failed to conduct due diligence in determining that proposed CAFO would not create significant pollution. The landowner also claimed that the defendant failed to consider the need for odor control measures, the applicant’s current and past environment violations, and whether the defendant followed its ordinances concerning setback requirements. The landowner also claimed that the defendant didn’t fully consider the nutrient and manure management plans. The trial court upheld the defendant’s approval, finding that there was no evidence that the defendant acted fraudulently or in arbitrary ow willful disregard of any undisputed and indisputable proof. The court also noted that the defendant’s land use ordinance specifically gives the defendant the ability to hear and decide on CUPs. In addition, the court held that the defendant and the state (SD) Department of Environmental and Natural Resources have the authority to oversee the applicant’s ability to follow the rules governing the CAFO and enforce them. On further review, the SD Supreme Court affirmed, but remanded on one issue. The Supreme Court determined that the defendant regularly pursued its authority under state law in granting CUPs and monitoring them to ensure that their conditions were satisfied. The Supreme Court also held that the landowners were not denied due process based on the applicant’s manure management plan. The Court determined that a new plan had not been presented during the hearing, so there was nothing that hadn’t been subject to the public notice requirement and the landowner’s due process rights had not been violated. The Court also determined that the defendant did not act with bias against the landowner and gave them an opportunity to speak out at the public hearing. However, the Court remanded on the point that the defendant mistakenly believed that past environmental violations are never relevant in considering whether to approve a CUP for a CAFO. Adolph v. Grant County Board of Adjustment, et al., No. 27884, 2017 S.D. LEXIS 26 (S.D. Sup. Ct. Mar. 1, 2017).

Oil Companies Need Not Return Land to its “Natural State.” The plaintiff oversaw coastal lands and claimed that the defendants’ (various oil and gas companies) exploration activities off of the Gulf of Mexico coast caused infrastructural and ecological damage to coastal lands that increased the risk of flooding due to storm surges and required costly protection measures. The case was originally brought in state court, but was moved to federal court on the basis that the case raised a federal issue. The trial court granted the defendants’ motion to dismiss and the appellate court affirmed. The case was properly in the federal court because the claim involved alleged damage to a federal levee system and associated claims. The appellate court also noted that state (LA) law does not require oil companies to return land to its “natural state” based on a 2005 LA Supreme Court opinion finding that the LA mineral code “does not impose an implied duty to restore the surface to its original, pre-lease condition absent proof that the lessee exercised his rights under the lease unreasonably or excessively.” The appellate court also held that the requirements of the Rivers and Harbors Act of 1899, the Clean Water Act and the Coastal Zone Management Act did not extend to the protection of the levee authority. The court reasoned that the Rivers and Harbors Act did not impose a duty to protect the plaintiff, the Clean Water Act dredge and fill permit requirement did not establish any private duty owed to the plaintiff, and the issuance of permits for exploration activities under the Coastal Zone Management Act did not impose a private duty to prevent environmental damage. Thus, the defendants had no duty to protect the plaintiff from higher flood protection costs that might arise from coastal erosion that might be the result of the defendants’ dredging activities. Board of Commissioners of the Southeast Louisiana Flood Protection Authority – East, et al. v. Tennessee Gas Pipeline Co., L.L.C., No. 15-30162, 2017 U.S. App. LEXIS 3865 (5th Cir. Mar. 3, 2017).

Posted February 25, 2017

Allegation of Future Restrictions on Water Rights Not Enough To Confer Standing. The plaintiffs claimed that the defendant (various federal agencies) did not conduct a required formal consultation under Section 7 of the Endangered Species Act (ESA) for a 2013 release of water from a dam in an amount exceeding the dam’s designated applicable water release schedule. The plaintiffs claimed that the release injured them by forcing them to place stricter restrictions on the operation of the Central Valley Project which would restrict water deliveries thereby negatively impacting the winter and spring run of salmon. The court held that the plaintiffs lacked standing on the basis that the alleged injuries were merely speculative. San Luis & Delta-Mendota Water Authority, et al. v. Haugrud, et al., No. 14-17493, 2017 U.S. App. LEXIS 2924 (9th Cir. Feb. 21, 2017).

Label-Based Claim Not FIFRA Preempted. The defendant manufactures a chemical weed killer. The labels on the bottles of the weed killer specify the amount of chemical to mix with water to make a certain amount of product that can be applied to weeds. An additional label was taped to the back of the bottles and sealed tight such that it could not be removed without tearing unless very careful effort was used. The plaintiff followed the label instructions and claimed that the mixture made substantially less weed killer than the label stated. The plaintiff sued claiming violations of the Magnuson-Moss Warranty Act (MMWA), the state (CA) Consumer Legal Remedies Act, CA False Advertising Law, CA Unfair Competition Law, as well as breach of express warranty and breach of the implied warranty of merchantability. The defendant moved to dismiss the state-based claims due to preemption by the Federal Insecticide Fungicide Rodenticide Act (FIFRA), and that there was no breach of warranty or other state law provisions. On the FIFRA preemption claim, the court rejected the defendant’s motion on the basis that none of the state law provisions claimed to have been violated imposed any requirement for labeling or packaging in addition to or different from FIFRA requirements. But, the court noted that any injunctive relief that would dictate the contents of the defendant’s EPA-approved label, or which would require the defendant to change the contents of its label is preempted by FIFRA. But, restitution and damages are not preempted. The court, however, did find that the defendant did not violate the MMWA because the label statement that the product would make a certain number of gallons did not constitute a “written warranty” within the meaning of the MMWA which narrowly defines the term. The balance of the defendant’s remaining arguments were rejected. Martin v. Monsanto Co., No. ED CV 16-2168-JFW (SPX), 2017 U.S. Dist. LEXIS 22565 (C.D. Cal. Feb. 16, 2017).

Posted February 20, 2017

COE Jurisdictional Determination Subject to Court Review. The plaintiff, a peat moss mining company, sought the approval of the Corps of Engineers (COE) to harvest a swamp (wetland) for peat moss to use in landscaping projects. The COE issued a jurisdictional determination that the swamp was a wetland subject to the permit requirements of the Clean Water Act (CWA). The plaintiff sought to challenge the COE determination, but the trial court, in a highly disingenuous opinion in light of the unanimous U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency, 566 U.S. 20 (2012), ruled for the COE, holding that the plaintiff had three options: (1) abandon the project; (2) seek a federal permit costing over $270,000; or (3) proceed with the project and risk fines of up to $75,000 daily and/or criminal sanctions including imprisonment. On appeal, the court unanimously reversed, strongly criticizing the trial court's opinion. Based on Sackett, the court held that COE Jurisdictional Determinations constitute final agency actions that are immediately appealable in court. The court noted that to hold elsewise would allow the COE to effectively kill the project without any determination of whether it's position as to jurisdiction over the wetland at issue was correct in light of Rapanos v. United States, 547 U.S. 715 (U.S. 2006). The court noted that the COE had deliberately left vague the "definitions used to make jurisdictional determinations" so as to expand its regulatory reach. While the COE claimed that the jurisdictional determination was merely advisory and that the plaintiff had adequate ways to contest the determination, the court determined that such alternatives were cost prohibitive and futile. The court stated that the COE's assertion that the jurisdictional determination (and the trial court's opinion) was merely advisory ignored reality and had a powerful coercive effect. The court held that the Fifth Circuit, which reached the opposition conclusion with respect to a COE Jurisdictional Determination in Belle Co., LLC v. United States Army Corps. of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. den., 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015), misapplied the Supreme Court's decision in Sackett. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, 782 F.3d 984 (8th Cir. 2015), rev'g., 963 F. Supp. 2d 868 (D. Minn. 2013). In a later decision, the court denied a petition to rehear the case en banc and by the panel. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 11697 (8th Cir. Jul. 7, 2015). In December of 2015, the U.S. Supreme Court agreed to hear the case and affirmed the Eighth Circuit on May 31, 2016. The Court, in a unanimous opinion, noted that the memorandum of agreement between the EPA and the Corps established that jurisdictional determinations are “final actions” that represent the Government’s position, are binding on the Government in any subsequent Federal action or litigation involving the position taken in the jurisdictional determination. When the landowners received an “approved determination” that meant that the Government had determined that jurisdictional waters were present on the property due to a “nexus” with the Red River of the North, located 120 miles away. As such, the landowners had the right to appeal in Court after exhausting administrative remedies and the Government’s position take in the jurisdictional determination was judicially reviewable. Not only did the jurisdictional determination constitute final agency action under the Administrative Procedure Act, it also determined rights or obligations from which legal consequences would flow. That made the determination judicially reviewable. United States Army Corps of Engineers v. Hawkes Company, No. 15-290, 2016 U.S. LEXIS 3489 (U.S. Sup. Ct. May 31, 2016).

On remand, the trial court granted summary judgment for the plaintiff on the grounds that the plaintiff’s property did not constituted “waters of the United States” that the defendant had jurisdiction over. The court determined that the government did not establish a “significant nexus” under the Rapanos standard between the plaintiff’s property and the Red River 93 miles away that the defendant claimed were connected via ditches and seasonal tributaries. The court noted that there was insufficient evidence that groundwater contributed to the tributaries or that there existed sufficient water in the tributaries. There was also no evidence with respect to the extent of water flowing from the man-made ditch connecting the plaintiff’s property to the tributaries. The defendant also did not present water quality data or that nutrients were transported from the plaintiff’s property to the Red River. The court also determined that the Jurisdictional Determination was not based on the “significant nexus” standard of Rapanos and was arbitrary and capricious. The court entered an injunction that ordered the defendant to not assert jurisdiction over the plaintiff’s property. In doing so, the court determined that the defendant had an adequate chance to develop a record which negated a remand back to the defendant to address the evidentiary inadequacies. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-107 ADM/TNL, 2017 U.S. Dist. LEXIS 10680 (D. Minn. Jan. 24, 2017).

Posted February 15, 2017

State Inaction on TMDLs is a “Constructive Submission” That EPA Must Act On. In response to state legislation, the West Virginia Department of Environmental Protection (WVDEP) did not develop total maximum daily loads (TMDLs) related to ionic toxicity. The plaintiff, an environmental activist group, sued the defendant (U.S. EPA) when the defendant did not take action to force the WVDEP to promulgate a TMDL for waters that the WVDEP and the U.S. Environmental Protection Agency (EPA) had identified as impaired. While the court noted that the Clean Water Act (CWA) provides the EPA with discretion in either approving or disapproving state TMDL submissions, the court held that the failure of a state to submit a TMDL is a “constructive submission” to the EPA of no TMDLs which the EPA must then review. The Clinton-appointed judge issuing the opinion admitted that his theory of constructive submission was one that he had to “gin up” in order to have a mechanism to “require the EPA to step in when states don’t comply with the CWA.” Ohio Valley Environmental Coalition, Inc., et al. v. McCarthy, NO: 3:15-0271, 2017 U.S. Dist. LEXIS 20392 (S.D. W. Va. Feb. 14, 2017).

Posted January 28, 2017

Under Iowa Law A Political Subdivision Cannot Sue Another. The plaintiff, a municipal waterworks that provides drinking water to a metropolitan area, sued upstream drainage districts for money damages and other remedies to recover its costs to remove nitrates (as required by the Federal Safe Drinking Water Act) from river water. The case was filed in federal court, but involved several state (IA) related questions. The federal court certified the state questions to the IA Supreme Court. On the question of whether drainage districts had unqualified immunity from all of the damage claims in the complaint, the Court held that they do based on the fact that drainage districts were formed over a century ago with a limited and targeted role to drain farmland so that it is more productive and are presumed to benefit the public. The Court pointed out that the immunity precedent was reaffirmed in 2012 when the Court held that a railroad could not sue a drainage district for the railroad’s costs incurred in repairing underground drainage tile (Chicago Central & Pacific Railroad v. Calhoun County Board of Supervisors, 816 N.W.2d 367 (Iowa 2012)), and that it has been IA precedent for over 100 years. As for another question, the Court noted that the plaintiff, as a political subdivision, cannot make a constitutional challenge to the drainage district statute. The only remedy the plaintiff would have is a mandamus action to make the defendant do something that it is statutorily required to do – and there is no statutory duty to filter out nitrates. The broad immunity granted to drainage districts is not unconstitutional. Relatedly, the Court answered another certified question with respect to whether the plaintiff could raise constitutional protections of inalienable rights, due process, equal protection and takings in the negative. The Court noted that those Constitutional provisions existed to protect citizens against overreaching government, which was not the case before the Court. The Court noted that even if the plaintiff could assert those Constitutional protections, that the increased need to treat nitrates from river water to meet standards for kitchen tap water would not rise to a constitutional violation. Board of Water Works Trustees of the City of Des Moines v. Sac County, et al., No. 16-0076, 2017 Iowa Sup. LEXIS 7 (Iowa Sup. Ct. Jan. 27, 2017).

Posted January 19, 2017

EPA “Water Transfers Rule” Is a Reasonable Interpretation of the Clean Water Act. New York City draws its drinking water from the Catskill Mountain/Delaware River watershed and other nearby rivers. The movement of the water is a “water transfer” that conveys or connects waters of the United States without subjecting those waters to any intervening industrial, municipal, or commercial use. The Environmental Protection Agency (EPA) does not subject waters transfers to the National Pollution Discharge Elimination System (NPDES) permit process under the Clean Water Act (CWA). See 73 Fed. Reg. 33,697-708 (Jun. 13, 2008), codified at 40 C.F.R. §122.3(i)). The plaintiffs, environmental activist groups, challenged the EPA position that the water transfer for the NY drinking supply should be subject to the NPDES system. The trial court, finding that the EPA position was entitled to Chevron deference, nevertheless determined that the EPA’s position was an unreasonable interpretation of the CWA and was invalid under the Chevron standard. The trial court vacated the rule and remanded it to the EPA for further assessment. On appeal, the appellate court reversed. The appellate court determined that the CWA was silent on the issue of whether an NPDES permit is required for water transfers, which then required a determination of the reasonableness of the EPA position under a basic standard that the courts not second-guess the EPA interpretation when the statute at issue is silent. The appellate court determined that the EPA interpretation was supported by valid considerations – the CWA did not require that water quality be improved when it is transferred; the rule preserves state authority over many aspects of water regulation; the rule gives regulators flexibility to balance the need to improve water quality with the potentially high costs of compliance with an NPDES permitting program; and allows for several alternative means for regulating water transfers. Thus, the EPA’s statutory interpretation was reasonable. Catskill Mountains Chapter v. United States Environmental Protection Agency, No. 14-1823, 2017 U.S. App. LEXIS 914 (2d Cir. Jan. 18, 2017).

Posted January 6, 2017

EPA Within Its Rights To Not Impose Limits on Fertilizer Runoff. Numerous environmental groups sued the EPA to force them to impose limits on fertilizer runoff from farm fields. The groups claimed that many states hadn’t done enough to control nitrogen and phosphorous pollution from agricultural runoff, and that the EPA was required to mandate federal limits under the Administrative Procedure Act – in particular, 5 U.S.C. §553(e) via §303(c)(4) of the CWA. Initially, the groups told the EPA that they would sue if the EPA did not write the rules setting the limits as requested. The EPA essentially ignored the groups’ petition by declining to make a “necessity determination. The groups sued and the trial court determined that the EPA had to make the determination based on a 2007 U.S. Supreme Court decision involving the Clean Air Act (CAA). That decision was reversed on appeal on the basis that the EPA has discretion under §303(c)(4)(B) of the CWA to decide not to make a necessity determination as long as the EPA gave a “reasonable explanation” based on the statute why it chose not to make any determination. The appellate court noted that the CWA differed from the CAA on this point. On remand, the trial court noted upheld the EPA’s decision not to make a necessity determination. The court noted that the CWA gives the EPA “great discretion” when it comes to regulating nutrients, and that the Congressional policy was to leave regulation of diffused surface runoff up to the states. The court gave deference to the EPA’s "comprehensive strategy of bringing the states along without the use of federal rule making…". Gulf Restoration Network v. Jackson, No. 12-677 Section: "A" (3), 2016 U.S. Dist. LEXIS 173459 (E.D. La. Dec. 15, 2016).

EPA TMDL Approval Doesn’t Mean that Stormwater Discharges Need Permit. The plaintiff claimed that the EPA’s approval of the state TMDL for a waterbody constituted a determination that particular stormwater discharges were contributing to the TMDL being exceeded and that federal permits were thus necessary. The court, however, determined that the EPA’s approval of the TMDL did not mean that EPA had concluded that stormwater discharges required permits. The court noted that there was nothing in the EPA’s approval of the TMDL indicating that the EPA had done its own fact finding or that EPA had independently determined that stormwater discharges contributed to a violation of state water quality standards. The regulations simply do not require an NPDES permit for stormwater discharges to waters of the United States for which a TMDL has been established. A permit is only required when, after a TMDL is established, the EPA makes a determination that further controls on stormwater are needed. Conservation Law Foundation v. United States Environmental Protection Agency, No. 15-165-ML, 2016 U.S. Dist. LEXIS 172117 (D. R.I. Dec. 13, 2016).

Posted September 11, 2016

Farm Groups Have Standing To Bring “Reverse” FOIA Suit. In 2008, the Government Accounting Office (GAO) issued a report stating that the Environmental Protection Agency (EPA) had inconsistent and inaccurate information about confined animal feeding operations (CAFOs), and recommended that EPA compile a national inventory of CAFO’s with NPDES permits. Also, as a result of a settlement reached with environmental activist groups, the EPA agreed to propose a rule requiring all CAFOs to submit information to the EPA as to whether an operation had an NPDES permit. The information required to be submitted had to provide contact information of the owner, the location of the CAFO production area, and whether a permit had been applied for. Upon objection by industry groups, the proposed rule was withdrawn and EPA decided to collect the information from federal, state and local government sources. Three environmental activist groups submitted Freedom of Information Act (FOIA) requests to obtain the EPA’s records containing CAFO information. In response, the EPA released information gathered from 28 states and from the EPA’s data systems. The released information contained the CAFO owner’s name and mailing address, email address and primary telephone number. When ag groups were notified of the release, the EPA agreed to look into whether it had disclosed information that was not publicly available that could trigger FOIA privacy concerns. The EPA determined that the records released that had been obtained from 19 states were not eligible for exemption from FOIA under 5 U.S.C. §552(b)(6) because the information was publicly available over the internet. The EPA obtained additional information about CAFOs, and various environmental activist groups filed a FOIA request. Some of the requested information include the CAFO owner’s legal name and mailing address, email address, and telephone number. EPA released information gathered from 28 states, and from its own data systems. The plaintiffs, two national ag groups, sued seeking an order to bar the EPA from making additional disclosures of personal information already collected, and recalling the personal information already released. The plaintiffs claimed that the EPA abused its discretion and acted arbitrarily and capriciously by releasing the information. Several environmental activist groups intervened in support of the disclosure. The trial court granted summary judgment for the EPA on the basis that the plaintiff lacked standing. On appeal, the court reversed, finding that that trial court improperly addressed the merits of the plaintiffs’ claim rather than the standing issue, and noted that the claims were still live because the EPA had proposed to release more information from seven states (including Minnesota). The appellate court noted that an individual’s interest in controlling the dissemination of information regarding personal matters does not disappear simply because the information may be publicly available in some form. Here, the EPA made it much easier for the activist groups to identify and target particular CAFOs. Accordingly, the appellate court held that the disclosure would invade a substantial privacy interest of the CAFO owners and further little public interest recognizable under FOIA. As such, the records were exempt from public disclosure, and the EPA had abused its discretion in determining that the exemption from mandatory FOIA disclosure did not apply. The court remanded on the issue of injunctive relief to bar the EPA from disclosing the additional records. American Farm Bureau Federation v. United States Environmental Protection Agency, No. 15-1234, 2016 U.S. App. LEXIS 16623 (8th Cir. Sept. 9, 2016).

Posted August 18, 2016

Government Didn’t Adequately Consider Alternative to Bat Deaths From Proposed Wind Farm. The U.S. Fish and Wildlife Service (USFWS) issued a permit to a wind energy company allowing for the killing (“taking”) a certain number of Indiana Bats as a consequence of the company’s proposed wind farm. The plaintiff claimed that the USFWS did not adequately consider reasonable alternatives that would have minimized the harm to the protected bats along with other wildlife as is required by the National Environmental Policy Act (NEPA) due to the significant impact on the environment by the proposed wind farm. The court noted that the USFWS did not consider the benefit of implementing a cut in the blade speed on bats rather than a shut-down at night. As such, the USFWS did not comply with its NEPA obligations to consider a feasible alternative. The court, however, did not find a violation of the Endangered Species Act. The value of the bats are estimated at $74 per crop acre in avoided pesticide use. Union Neighbors United, Inc. v. Jewell, No. 15-5147, 2016 U.S. App. LEXIS 14377 (D.C. Cir. Aug. 5, 2016).

Air Emissions of Hazardous Waste Don’t Create CERCLA Liability. The defendant operated a smelter approximately 10 miles into Canada north of the Washington border. In a prior action, the state of Washington and an Indian tribe obtained a court decision that the defendant could be held liable under the Comprehensive Environmental Response, Compensation Liability Act (CERCLA) for discharges of hazardous waste that cross into the United States. As a result, the plaintiffs amended their complaint to claim that the defendant arranged for disposal and thereby triggered CERCLA liability via emissions from its facility that the wind carried and deposited into the Columbia River. The trial court denied the defendant’s motion to dismiss on the basis that the air emission amounted to a “disposal” under CERCLA once deposited onto land or water. On appeal, while the court noted that the plaintiffs had posited a reasonable construction of CERCLA, the court cited its prior decision in Center for Community Action and Environmental Justice v. BNSF Railway Co,764 F.3d 1019 (9th Cir. 2014) where the court held that diesel particulate emissions “transported by wind and air currents” were not a “disposal” of waste within the meaning of the Resource Conservation Recovery Act, and its prior decision in Carson Harbor Village, Limited v. Unocal Corporation, 270 F.3d 863 (9th Cir. 2001) where the court held that mere passive migration does not constitute a disposal under CERCLA. Thus, air emissions are excluded from regulation under CERCLA. Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228, 2016 U.S. App. LEXIS 13662 (9th Cir. Jul. 27, 2016).

Posted July 4, 2016

Right-Of-Way Grant For Development of Wind Energy Facility Did Not Violate MBTA. The Bureau of Land Management (BLM) granted a right-of-way to a wind energy company for use in the development and operation of a wind energy facility. The plaintiff, an activist group, filed suit against the Department of the Interior claiming that the BLM violated the Migratory Bird Treaty Act (MBTA) in granting the right-of-way based on possible future conduct of the wind energy facility (e.g., future bird fatalities). Specifically, the plaintiff claimed that the grant of the right-of-way should have been conditioned on the facility getting “take” permits from the U.S. Fish and Wildlife Service. The court rejected the plaintiff’s argument on the basis that the MBTA does not provide for the vicarious liability of agencies that act in a purely regulatory capacity. The court reasoned that was the case where the regulatory actions, like the one present in this case, do not directly or proximately cause the “take” of migratory birds. Thus, the BLM’s authorization for the facility to construct and operate a wind energy facility on public lands did not amount to an illegal “take” of migratory birds without a permit under the MBTA. The court also held that the BLM need not condition its right-of-way approval because the Administrative Procedures Act and the MBTA do not require the BLM to guarantee that the recipient of the right-of-way will comply with the MBTA in the future or require the BLM to ensure the recipient of the right-of-way would act lawfully in the future. The court made no ruling on whether the incidental “take” of migratory birds by a wind energy facility constituted an MBTA violation. The circuit courts are presently split on whether an incidental take is an MBTA violation with the Tenth Circuit in United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010), holding that the MBTA is a strict liability statute that does not have an intent requirement and that the MBTA is violated by the incidental take of migratory birds whenever the “take” is foreseeable. Protect our Communities Foundation v. Jewell, No. 14-55666, 2016 U.S. App. LEXIS 10269 (9th Cir. Jun. 7, 2016).

Posted June 25, 2016

Pasture Chiseling Activity Constituted Discharge of “Pollutant” That Violated the CWA. The plaintiff bought approximately 2,000 acres in northern California in 2012. Of that 2,000 acres, the plaintiff sold approximately 1,500 acres. The plaintiff retained an environmental consulting firm to provide a report and delineation map for the remaining acres and requested that appropriate buffers be mapped around all wetlands. The firm suggested that the plaintiff have the U.S. Army Corps of Engineers (COE) verify the delineations before conducting any grading activities. Before buying the 2,000 acres, the consulting firm had provided a delineation of the entire tract, noting that there were approximately 40 acres of pre-jurisdictional wetlands. The delineation on the remaining 450 acres of pasture after the sale noted the presence of intact vernal and seasonal swales on the property along with several intermittent and ephemeral drainages. A total of just over 16 acres of pre-jurisdictional waters of the United States were on the 450 acres – having the presence of hydric soils, hydrophytic vegetation and hydrology (1.07 acres of vernal pools; 4.02 acres of vernal swales; .82 acres of seasonal wetlands; 2.86 acres of seasonal swales and 7.40 acres of other waters of the United States). In preparation to plant wheat on the tract, the property was tilled at a depth of 4-6 inches to loosen the soil for plowing with care taken to avoid the areas delineated as wetlands. However, an officer with the (COE) drove past the tract and thought he saw ripping activity that required a permit. The COE sent a cease and desist letter and the plaintiff responded through legal counsel requesting documentation supporting the COE’s allegation and seeking clarification as to whether the COE’s letter was an enforcement action and pointing out that agricultural activities were exempted from the CWA permit requirement. The COE then provided a copy of a 1994 delineation and requested responses to numerous questions. The plaintiff did not respond. The COE then referred the matter to EPA for enforcement. The plaintiff sued the COE claiming a violation of his Fifth Amendment right to due process and his First Amendment right against retaliatory prosecution. The EPA refused the referral due to the pending lawsuit so the COE referred the matter to the U.S. Department of Justice (DOJ). The DOJ filed a counterclaim against the plaintiff for CWA violations. The court granted the government’s motion on the due process claim because the cease and desist letter did not initiate any enforcement that triggered due process rights. The court also dismissed the plaintiff’s retaliatory prosecution claim. On the CWA claim brought by the defendant, the court determined that the plaintiff’s owner could be held liable as a responsible party. The court noted that the CWA is a strict liability statute and that the intent of the plaintiff’s owner was immaterial. The court then determined that the tillage of the soil causes it to be “redeposited” into delineated wetlands. The redeposit of soil, the court determined, constituted the discharge of a “pollutant” requiring a national pollution discharge elimination system (NPDES) permit. The court reached that conclusion because it found that the “waters” on the property were navigable waters under the CWA due to a hydrological connection to a creek that was a tributary of Sacramento River and also supported the federally-listed vernal pool fairy shrimp and tadpole shrimp. Thus, a significant nexus with the Sacramento River was present. The court also determined that the farming equipment, a tractor with a ripper attachment constituted a point source pollutant under the CWA. The discharge was not exempt under the “established farming operation” exemption of 33 U.S.C. §1344(f)(1) because farming activities on the tract had not been established and ongoing, but had been grazed since 1988. Thus, the planting of wheat could not be considered a continuation of established and ongoing farming activities. Duarte Nursery, Inc. v. United States Army Corps of Engineers, No. 2:13-cv-02095-KJM-AC, 2016 U.S. Dist. LEXIS 76037 (E.D. Cal. Jun. 10, 2016).

Posted June, 13, 2016

Stay Entered in WOTUS Case. In a case filed in 2015 involving the EPA’s “waters of the United States” (WOTUS) rule, the court has now issued a “stay” pending a decision by the U.S. Court of Appeals for the Sixth Circuit, which has decided that it (and other federal court of appeals) have exclusive jurisdiction to hear the challenges to the WOTUS rule. Thus, it has become unclear, the court determined, whether the federal district courts retained any jurisdiction over any of the claims in the litigation over the rule. Because proceeding with the case in the district court could be duplicative of the Sixth Circuit litigation, the court entered the stay. North Dakota v. United States Environmental Protection Agency, No. 3:15-cv-59 (D. N.D. May 24, 2016).

Posted May 31, 2016

COE Jurisdictional Determination Subject to Court Review. The plaintiff, a peat moss mining company, sought the approval of the Corps of Engineers (COE) to harvest a swamp (wetland) for peat moss to use in landscaping projects. The COE issued a jurisdictional determination that the swamp was a wetland subject to the permit requirements of the Clean Water Act (CWA). The plaintiff sought to challenge the COE determination, but the trial court, in a highly disingenuous opinion in light of the unanimous U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012), ruled for the COE, holding that the plaintiff had three options: (1) abandon the project; (2) seek a federal permit costing over $270,000; or (3) proceed with the project and risk fines of up to $75,000 daily and/or criminal sanctions including imprisonment. On appeal, the court unanimously reversed, strongly criticizing the trial court's opinion. Based on Sackett, the court held that COE Jurisdictional Determinations constitute final agency actions that are immediately appealable in court. The court noted that to hold elsewise would allow the COE to effectively kill the project without any determination of whether it's position as to jurisdiction over the wetland at issue was correct in light of Rapanos v. United States, 547 U.S. 715 (U.S. 2006). The court noted that the COE had deliberately left vague the "definitions used to make jurisdictional determinations" so as to expand its regulatory reach. While the COE claimed that the jurisdictional determination was merely advisory and that the plaintiff had adequate ways to contest the determination, the court determined that such alternatives were cost prohibitive and futile. The court stated that the COE's assertion that the jurisdictional determination (and the trial court's opinion) was merely advisory ignored reality and had a powerful coercive effect. The court held that the Fifth Circuit, which reached the opposition conclusion with respect to a COE Jurisdictional Determination in Belle Co., LLC v. United States Army Corps. of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. den., 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015), misapplied the Supreme Court's decision in Sackett. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, 782 F.3d 984 (8th Cir. 2015), rev'g., 963 F. Supp. 2d 868 (D. Minn. 2013). In a later decision, the court denied a petition to rehear the case en banc and by the panel. Hawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 11697 (8th Cir. Jul. 7, 2015). In December of 2015, the U.S. Supreme Court agreed to hear the case and affirmed the Eighth Circuit on May 31, 2016. The Court, in a unanimous opinion, noted that the memorandum of agreement between the EPA and the Corps established that jurisdictional determinations are “final actions” that represent the Government’s position, are binding on the Government in any subsequent Federal action or litigation involving the position taken in the jurisdictional determination. When the landowners received an “approved determination” that meant that the Government had determined that jurisdictional waters were present on the property due to a “nexus” with the Red River of the North, located 120 miles away. As such, the landowners had the right to appeal in Court after exhausting administrative remedies and the Government’s position take in the jurisdictional determination was judicially reviewable. Not only did the jurisdictional determination constitute final agency action under the Administrative Procedure Act, it also determined rights or obligations from which legal consequences would flow. That made the determination judicially reviewable. United States Army Corps of Engineers v. Hawkes Company, No. 15-290, 2016 U.S. LEXIS 3489 (U.S. Sup. Ct. May 31, 2016).

Posted April 16, 2016

Non-Listing of Wolverine as Threated Violated ESA. The U.S. Fish and Wildlife Service (FWS) made a determination that the wolverine should not be listed as a threatened species after first proposing to do so, but then withdrawing the proposal. In making its determination, the FWS determined that “global warming” (now referred to by its proponents as “climate change”) and projected spring snow cover would have no impact on the wolverine and its reproductive denning scale in the foreseeable future. In an 85-page opinion filled with politicized statements and conclusions, the court determined that the FWS erred in making such a determination, and also erred in concluding that small population size and low genetic diversity did not pose an independent threat to wolverine viability. The court held that the FWS decision to withdraw the listing proposal based on these determinations was arbitrary and capricious because the wolverine stood “squarely in the path of global climate change.” The court failed to make any mention of how the wolverine survived prior periods of significant warming that have been scientifically established or note that there is no sound scientific data supporting “global warming” presently. Defenders of Wildlife v. Jewell, No. CV 14-246-M-DLC, 2016 U.S. Dist. LEXIS 45532 (D. Mont. Apr. 4, 2016).

Posted April 12, 2016

NRCS Properly Determined Wetland Status of Farmland. The plaintiffs, a married couple, own farmland in the prairie pothole region of southeast South Dakota. The defendant determined that 0.8 acres of one of the plaintiffs’ field was a prairie pothole that was properly classified as a wetland that could not be farmed without the plaintiffs losing farm program eligibility. The plaintiffs administratively appealed the defendant’s determination to the USDA National Appeals Division (NAD), but failed to show (according to the NAD) that the determination was erroneous by a preponderance of the evidence because the defendant had followed the proper procedures in determining the wetland status of the 0.8 acres. The plaintiffs sought review of the NAD hearing officer’s decision, but the decision was upheld. From that decision, the plaintiffs’ sought judicial review. The plaintiffs did not dispute that the tract contained a predominance of hydric soils, but claimed that the tract did not contain the necessary hydrology (degree of flooding or soil saturation) to qualify as a wetland under the USDA guidelines. The plaintiffs also claimed that the tract would not support a prevalence of hydrophytic vegetation under normal circumstances. The trial court, however, granted the defendant’s motion for summary judgment on the basis that the defendant’s decision was not arbitrary, capricious or contrary to the law. On further review, the appellate court affirmed. The court determined that the defendant’s method for determining hydrology by using aerial photographs taken when the tract was under normal environmental conditions was proper, given that the tract was drier than normal during the defendant’s site visit and because the plaintiffs had tilled the tract such that it was not in its normal condition at the time of the site visit. The plaintiffs’ claim that the defendant had relied on “color tone” differences in the photographs to identify the tract as a wetland was dismissed because the defendant had actually identified some of the specifically authorized wetland signatures rather than just relying on changes in color tone. The court also rejected the plaintiffs’ claim that the defendant had relied on a comparison site too distant from the tract at issue that wasn’t within the local area as the regulations required. The comparison site chosen was 40 miles away but was within the same Major Land Resource Area. As such, the comparison site satisfied the regulatory criteria contained in 7 C.F.R. §12.31(b)(2) to find a similar tract in its natural vegetative state. Accordingly, the defendant’s use of the comparison site was not arbitrary, capricious or contrary to the law. Foster v. Vilsack, No. 14-3887, 2016 U.S. App. LEXIS 6538 (8th Cir. Apr. 11, 2016).

Posted April 1, 2016

Court Upholds USDA Determination That Farmland Contains Wetlands and Converted Wetlands. The plaintiff (and her now-deceased husband) has owned the farm at issue since the early 1980s. The farm has been continuously used for livestock and grain production for over 150 years. The tenants that farm the land participate in federal farm programs. In 1987, the plaintiffs were notified that the farm could contain wetlands due to the presence of hydric soils and, in 1991, the USDA made a non-certified determination of potential wetlands, prior converted wetlands and converted wetlands on the property. In 1994, the plaintiff’s husband noticed that passersby were dumping garbage on a portion of the property. To deter the garbage-dumping, the plaintiff’s husband cleaned up the garbage, cleared brush, and removed five trees initially and more trees several years later. In 2002, an attempt was made to place the farm in the Conservation Reserve Program, which triggered a field visit by USDA-NRCS. However, a potential wetland violation had been reported and NRCS was tasked with making a determination of whether a wet area had been converted to wetland after November 28, 1990. The petitioner’s husband requested a certified wetland determination, and in late 2002 the NRCS made a “routine wetland determination” that found all three criteria for a wetland (hydric soil, hydrophytic vegetation and hydrology) were present by virtue of comparison to adjacent property because the tract in issue was being farmed. The plaintiff’s husband was notified in early 2003 of a preliminary technical determination that 2.8 acres were converted wetlands and 1.6 acres were wetlands. The petitioner’s husband requested a reconsideration and a site visit. Two separate site visits were scheduled and later cancelled due to bad weather. The husband also timely notified NRCS that he was appealing the preliminary wetland determination and requested a field visit, asserting that NRCS had made a technical error. A field visit occurred in the spring of 2003 and a written appeal was filed of the preliminary wetland determination and a review by the state conservationist was requested. The appeal claimed that the field visit was inadequate. No site visit occurred, and a certified final wetland determination was never made.

The husband died, and nine years later a new tenant submitted a “highly erodible land conservation and wetland conservation certification” to the FSA. The tenant also requested permission to remove an old barn and house from a field to allow farming of that ground. In late 2012, the NRCS discovered that a final wetland determination had never been made and a field visit was scheduled shortly after a foot of snow and several inches of rain had fallen on the property. The NRCS determined that one field did not contain wetlands, another field had 1.3 acres of wetland, another field had 0.7 acres of converted wetlands and yet another field had 1.9 acres of converted wetlands. The plaintiff appealed the final technical determination to the USDA-NAD. The plaintiff claimed that drainage tile had been installed pre-1985 on the tracts where NRCS claimed converted wetland existed, and that another field with claimed wetlands was actually being used as pasture unlike the comparison site which was not being used. The plaintiff also claimed that the removal of trees and vegetation were not dispositive indicators of wetland and that improper comparison sites were used. A tiling company, however, discovered that no drainage tile had ever been installed on the subject tracts.

The USDA-NAD affirmed the certified final technical determination, and the plaintiff appealed, but the NAD Director affirmed. The plaintiff appealed, and the court affirmed on the basis that the removal of trees and vegetation had the “effect of making possible the production of an agricultural commodity” where the trees once stood and, thus, the NRCS determination was not arbitrary or capricious with respect to the converted wetland determination. The court also determined that NRCS followed regulatory procedures found in 7 C.F.R. §12.31(b)(2)(ii) for determining wetland status on the land that was being farmed by comparing the land to comparable tracts that were not being farmed. The court also noted that existing regulations do not require site visits during the growing season and “normal circumstances” of the land does not refer to normal climate conditions but instead refers to soil and hydrologic conditions normally present without regard to the removal of vegetation. The court also determined that the ten-year timeframe between the preliminary determination and the final determination did not deprive the plaintiff of due process rights. As a result, the court granted the government’s motion for summary judgment. Boucher v. United States Department of Agriculture, No. 1:13-cv-01585-TWP-DKL, 2016 U.S. Dist. LEXIS 23643 (S.D. Ind. Feb. 26, 2016).


U.S. Supreme Court Declines To Review TMDL Case. Section 303 (“Water Quality Standards and Implementation Plans”), requires states to adopt water-quality standards, to the extent not previously done, and to carry forward those already adopted subject to EPA approval. Standards are to be set for both interstate and intrastate waters, and the standards must be updated periodically and submitted to EPA for review and approval. The standards are to take into account the unique needs of each waterway including “propagation of fish and wildlife” as well as “agricultural...and other purposes.” Any state that fails to set water quality standards is subject to the EPA imposing its own standards on the state. Section 303 does not exempt any rivers or waters, but covers all waters to the full extent of federal authority over navigable waters. The states are to establish total maximum daily loads (TMDLs) for watercourses that fail to meet water quality standards after the application of controls on point sources. A TMDL establishes the maximum amount of a pollutant that can be discharged or “loaded” into the water at issue from all combined sources on a daily basis and still permit that water to meet water quality standards. A TMDL must be set “at a level necessary to implement water quality standards.” The CWA does not define TMDL, but the EPA’s regulations break it into a “waste load allocation” for point sources and a “load allocation” for nonpoint sources. TMDLs purpose is to limit the amount of pollutants in a watercourse on any particular date.

A significant question is whether the EPA has the authority to regulate nonpoint source pollutants under § 303 through the TMDL process and require reductions in nonpoint source discharges. In 2010, the EPA published a TMDL of nitrogen, phosphorous and sediment that can be released into the Chesapeake Bay watershed. The TMDL set forth a timetable for compliance by the affected states. In addition, states were required to determine how much agriculture had to reduce runoff by adopting new technology and conservation practices. The new rules were legally challenged in 2011 on the basis that the EPA lacked the authority to regulate individual pollutants from farmland and other specific sources, and that the EPA lacked the authority to regulate individual pollutants from farmland and other specific sources. In 2014, attorneys’ general from 21 states joined the lawsuit. In mid-2015, however, while the court held that likely economic injury in the form of higher compliance costs was sufficient to confer standing to challenge the TMDL, the court held that the EPA had acted within its authority under 33 U.S.C. §1251(d) in developing the TMDL. In early 2016, the U.S. Supreme Court declined to review the Third Circuit’s decision. American Farm Bureau, et al. v. United States Environmental Protection Agency, et al., 792 F.3d 281 (3d Cir. 2015), cert. den., No. 15-599, 2016 U.S. LEXIS 1074 (U.S. Sup. Ct. Feb. 29, 2016).


Road Salt Used on Streets Is Not “Solid Waste” For RCRA Purposes.The plaintiff sued the city of Omaha, Nebraska, for a violation of the federal Resource Conservation Recovery Act (RCRA), claiming that “hazardous waste” was “discarded” when rain water and melting snow “released” the salt into the environment. The trial court dismissed the complaint on the basis that the road salt did not satisfy RCRA’s definition of “solid waste.” On appeal, the court affirmed. The appellate court affirmed on the basis that the road salt was not “discarded” because it was released into the environment as a result of its intended use and, therefore, did not meet the RCRA definition of “solid waste.” Krause v. City of Omaha, No. 15-2985, 2016 U.S. App. LEXIS 3018 (8th Cir. Feb. 22, 2016).


Appellate Court To Decide Fate of EPA’s “Waters of the United States” Final Rule. The Clean Water Act makes illegal the discharging of dredge or fill material into the “navigable waters of the United States” without first obtaining a permit from the Secretary of the Army acting through the Corps of Engineers (COE). But what are the “waters of the United States”? It’s a phrase that has been the subject of many court cases since the early 1970s, and in 2006 the U.S. Supreme Court rendered its most recent opinion involving the scope of federal regulation over isolated wetlands in Rapanos, et ux., et al. v. United States Army Corps of Engineers, 126 S. Ct. 2208 (2006).

Unfortunately, the Court failed to clarify the meaning of the CWA phrase “waters of the United States” and the scope of federal regulation of isolated wetlands, and didn’t issue a majority opinion. Instead, the Court issued five separate opinions. The end result was that the concurring opinion written on the narrowest grounds became the holding of the Court. That was Justice Kennedy’s opinion. He said that the COE needed to establish a significant nexus on a case-by-case basis when seeking to regulate wetlands based on adjacency to non-navigable tributaries, in order to avoid unreasonable application of the CWA. That’s neither a clear victory for the landowners in the cases or the COE, and it didn’t provide clear guidance on the scope of “waters of the United States.” In subsequent years, the lower courts struggled to apply the Kennedy standard in cases involving alleged “waters of the United States” and the government’s ability to regulate activity involving those waters.

In March of 2014, the EPA and the COE released a proposed rule defining “waters of the United States” in a manner that would significantly expand the agencies’ regulatory jurisdiction under the CWA. Under the proposed rule, the CWA would apply to all waters which have been or ever could be used in interstate commerce as well as all interstate waters and wetlands. In addition, the proposed rule specifies that the agencies’ jurisdiction would apply to all “tributaries” of interstate waters and all waters and wetlands “adjacent” to such interstate waters. The agencies also asserted in the proposed rule that their jurisdiction applies to all waters or wetlands with a “significant nexus” to interstate waters. Under the proposed rule, “tributaries” is broadly defined to include natural or man-made waters, wetlands, lakes, ponds, canals, streams and ditches if they contribute flow directly or indirectly to interstate waters irrespective of whether these waterways continuously exist or have any nexus to traditional “waters of the United States.” The proposed rule defines “adjacent” expansively to include “bordering, contiguous or neighboring waters.” Thus, all waters and wetlands within the same riparian area of flood plain of interstate waters would be “adjacent” waters subject to CWA regulation. “Similarly situated” waters are evaluated as a “single landscape unit” allowing the agencies to regulate an entire watershed if one body of water within it has a “significant nexus” to interstate waters.

The proposed rule became effective as a final rule on August 28, 2015 in 37 states, but a decision by a North Dakota federal district court judge blocked the rule from taking effect in the remaining 13 states. The lawsuit filed in that case and in other similar lawsuits across the country claimed that the rule exceeded congressional authority under the CWA, interfered with state sovereignty to regulate non-federal waters and that the EPA violated the Administrative Procedures Act (APA) when it issued the rule. At least one court issued a temporary injunction, and legislative efforts to rescind the rule were taken. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide injunction barring the rule from being enforced anywhere in the U.S. Ohio, et al. v. United States Army Corps of Engineers, et al., 803 F.3d 804 (6th Cir. 2015). Over 20 lawsuits had been filed at the federal district court level.

On February 22, 2016, the U.S. Court of Appeals for the Sixth Circuit ruled that it had jurisdiction to hear the challenges to the final rule, siding with the EPA and the U.S. Army Corps of Engineers that the CWA gives the circuit courts exclusive jurisdiction on the matter. The court determined that the final rule is a limitation on the manner in which the EPA regulates pollutant discharges under CWA Sec. 509(b)(1)(E), the provision addressing the issuance of denial of CWA permits (codified at 33 U.S.C. §1369(b)(1)(E)). That statute, the court reasoned, have been expansively interpreted by numerous courts and the practical application of the final rule, the court noted, is that it impacts permitting requirements. As such, the court had jurisdiction to hear the dispute. The court also cited the Sixth Circuit’s own precedent on the matter in National Cotton Council of America v. United States Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009) for supporting its holding that it had jurisdiction to decide the dispute. Still pending is a decision by the U.S. Circuit Court of Appeals for the Eleventh Circuit involving Florida and 10 other states that are trying to overturn a trial court ruling that the U.S. Circuit Court of Appeals is the proper venue for challenges to the final rule. In mid-February, the Eleventh Circuit postponed oral argument pending the decision of the Sixth Circuit. Murray Energy Corp. v. United States, Department of Defense, No. 15-3751, 2016 U.S. App. LEXIS 3031 (6th Cir Feb. 22, 2016).


EPA Need Not Respond to Petition of Activist Groups. The plaintiffs, a consortium of environmental activist groups and community organizers, sued the Environmental Protection Agency (EPA) for not responding to their 2011 petition that alleged that ammonia gas from confined animal feeding operations (CAFOs) endangered public health and welfare, should be designated as a "criteria pollutant" under the Clean Air Act (CAA), and that National Ambient Air Quality Standards should be established for ammonia. The plaintiffs sought to compel the EPA to respond within 90 days and also claimed that the EPA had violated the Administrative Procedures Act (APA) by not responding. However, the court ruled that it lacked subject matter jurisdiction to hear the petition, because the plaintiffs should have brought suit under the CAA which requires a 180-day notice before filing. Because the CAA provided a remedy for the plaintiffs, they were required to sue under the CAA before attempting to sue under the APA. The petition was dismissed. The plaintiffs have stated in another court filing that they will provide the required 180-day notice and sue under the CAA. Environmental Integrity Project, et al. v. United States Environmental Protection Agency, No. 15-0139 (ABJ), 2015 U.S. Dist. LEXIS 160578 (D. D.C. Dec. 1, 2015).


EPA Registration of Insecticides Toxic to Honey Bees Vacated. The Environmental Protection Agency (EPA), in 2010, unconditionally approved the registration of sulfoxaflor in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act which bars the sales of pesticides that haven’t been approved and registered by the EPA. The plaintiffs, commercial bee keepers and bee keeping organizations, challenged the approval based on studies which showed that sulfoxaflor was highly toxic to bees. The court determined that the EPA’s approval was not supported by substantial evidence and that the approval posed the potential for more environmental harm than vacating the approval. Pollinator Stewardship Council, et al. v. United States Environmental Protection Agency, No. 13-72346, 2015 U.S. App. LEXIS 19945 (9th Cir. Nov. 12, 2015).


Court Approves 5 Percent Valuation Discount For Environmental Contamination. At issue in this case was the proper determination of the fair market value of the plaintiff's 229.24-acre commercial property for property tax purposes. 110 acres of the tract contained buildings and other improvements with the balance of the tract considered to be "excess" land. The tract had been previously used by the U.S. Navy to operate a weapons manufacturing plant where they buried numerous contaminants which resulted in significant environmental damage to the tract. The tract became subject to an environmental remediation agreement under which the plaintiff was partly responsible for remediation costs. In 2003, the defendant notified the plaintiff of its intent to increase the tract's property tax assessment. The plaintiff filed an appeal with the county Board, which affirmed. The matter then proceeded to court which affirmed. On further review, the appellate court affirmed in part and vacated and remanded in part. The appellate court noted that an appraisal must be based on the tract's current status, considering it's potential for development, and that the trial court's reliance on one of the experts was not supported by the evidence. The appellate court also noted that restrictions on the tract impacted the tract's market value. The appellate court vacated the trial court's order and remanded the case for calculation of the assessed value with consideration of the plaintiff's environmental obligations. On further review, the state (PA) Supreme Court upheld an appraiser's opinion that the value of the tract was fair market value less five percent for environmental "stigma." Harley-Davidson Motor Company v. Springettsbury Township, et al., No. 82 MAP 2014, 2015 Pa. LEXIS 2170 (Pa. Sup. Ct. Sept. 29, 2015).


Withdrawal of CAFO Information Reporting Rule Upheld. In 2011, the defendant (U.S. EPA) proposed a rule that would have required a confined animal feeding operation (CAFO) to release comprehensive data providing precise CAFO locations, animal types, and number of head as well as personal contact information including names addresses, phone numbers and email addresses of CAFO owners. The Department of Homeland Security (DHS) had informed the defendant that the release of such personal and confidential information could constitute a domestic safety risk. The DHS pointed out that such personal business information is exempted from disclosure under FOIA enumerated exemptions No. 4 and No. 6. In an earlier challenge to the proposed rule, a different court held that the opponents to the rule lacked standing for failure to demonstrate an actual or imminent injury - American Farm Bureau Federation, et al. v. United States Environmental Protection Agency, et al., No. 13-1751 ADM/TNL, 2015 U.S. Dist. LEXIS 9106 (D. Minn. Jan. 27, 2015). The defendant withdrew the proposed rule in 2012, reserving the right to developing a similar rule in the future. The plaintiffs, various activist groups, generally opposed to confinement livestock facilities and related production activities challenged the defendant's withdrawal of the rule as a violation of the Administrative Procedures Act (APA). The court granted summary judgment for the defendant given the greater deference owed to the defendant when it withdraws a rule and maintains the status quo. The court agreed with the defendant that the better approach was to "explore, develop and assess" existing sources of data and keep an option open to require mandatory reporting of such information in the future. The court also determined that the withdrawal of the rule did not violate the Clean Water Act. Environmental Integrity Project, et al. v. McCarthy, No. 13-1306 (RDM), 2015 U.S. Dist. LEXIS 131653 (D. D.C. Sept. 29, 2015).


Unlawful Taking Under the MBTA Requires A Deliberate Act. The plaintiff owns and operates an oil refinery in Texas. After a 2002 inspection of the facility, the Environmental Protection Agency (EPA) filed a criminal indictment against the defendant for Clean Air Act violations for failure to cover tanks with emission-control equipment, and for "taking" migratory birds in violation of the Migratory Bird Treaty Act (MBTA). The trial court found the defendant guilty of three violations of the MBTA on the basis that liability under the MBTA could result irrespective of the defendant's intent simply based on proximate cause. On appeal, the court reversed. The appellate court applied the well-understood common law meaning of "take" (when not combined with "harass" or "harm") so as to preclude events that cause mere accidental or indirect harm to protected birds. The court determined that the evidence did not show that the equalization tanks were utilized with the deliberate intent to cause bird deaths. In so holding, the court rejected contrary holdings of the Second and Tenth Circuits on the issue. The court also noted that an MBTA violation would not arise from bird collisions with electrical transmission lines, thus power companies would not need to seek an incidental take permit from the USFWS in the Fifth Circuit. United States v. Citgo Petroleum Corp, et al., No. 14-40128, 2015 U.S. App. LEXIS 15865 (5th Cir. Sept. 4, 2015), rev'g. and remanding, 893 F. Supp. 2d 841 (S.D. Tex. 2012).