NALC webinar will review liability challenges for equine, agritourism business owners

By Drew Viguet
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — With the fall season comes visits to pumpkin patches, hayrides, corn mazes and petting zoos – but for owners of these attractions, risk and liability come along with visitors.

The National Ag Law Center's Oct. 16 webinar will discuss managing risk and liability in equine and agritourism operations. (Division of Agriculture photo)

“Agritourism is a huge industry, and continues to grow,” Rusty Rumley, senior staff attorney at the National Agricultural Law Center, or NALC, said. “It can diversify a farm’s income, but there is risk and liability associated with it for business owners.”

The 2022 Census of Agriculture showed a rise in the income generated from agritourism and recreational services, jumping from $949 million in 2017 to almost $1.26 billion in 2022.

With a growing industry comes the potential for liability, whether due to injuries or illnesses experienced by patrons.

“States around the country have implemented specific statutes that outline the responsibilities and liabilities for business owners who are involved in agritourism and equine-related activities,” Rumley said. “It’s important that owners are aware of these statutes and the limitations inherent in them as well. However, further risk mitigation tools such as liability insurance and proper planning are also needed to limit potential risk.”

Equine Activity & Agritourism Statutes: Strategies for Risk Management, the next webinar hosted by the NALC, will focus on states’ statutes and the strategies business owners can take to mitigate risk. The webinar will be presented by Rumley and Tim Potter, equine and animal scientist with a Ph.D. from Texas A&M University, and owner of Potter Consulting, LLC.

“The NALC hears about unique legal situations involving equine and agritourism frequently,” Rumley said. “These businesses have a lot to offer for both the owners and the community, but there are key risks involved that must be accounted for before opening their doors to the general public.”

The webinar is available at no cost. Registration is available online at the NALC website.

During the presentation, Rumley and Potter will also provide real-life examples of risks associated with the equine and agritourism operations as well as practical solutions to address these concerns.

“It’s a fascinating area of agricultural law,” Potter said. “While the fruits of business owners’ labor is visible, there is so much that goes on behind the scenes to ensure these practices are safe from potential risk and liability.”

Rumley said Potter’s years of experience with horses will be a huge benefit to webinar attendees curious about equine liability.

“Dr. Potter has owned horses his entire life and has consulted with many over the years on these animals, ranging from topics on health issues, to behavior, safety issues and more,” Rumley said. “He’s an excellent addition to our webinar series.”

Agritourism survey opportunity

The University of Vermont, in partnership with the NALC, is hosting an online survey to understand how many U.S. agricultural operations welcome visitors for education, research, direct sales, hospitality and entertainment. Those who have a farm, ranch, or other agricultural business open to visitors are encouraged to participate in the brief survey.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on X. The National Agricultural Law Center is also on Facebook and LinkedIn.

Subscribe online to receive NALC Communications, including webinar announcements, the NALC’s Quarterly Newsletter, and The Feed.

If you are involved in agriculture, the NALC wants to hear from you. Take the NALC’s brief stakeholder survey online to help inform how the center serves the nation’s ag community.

EPA issues post-Sackett WOTUS rule, removes numerous waterways from Clean Water Act regulation

By Drew Viguet
National Agricultural Law Center
U of A System Division of Agriculture

Brigit Rollins, staff attorney for the National Agricultural Law Center, says that numerous bodies of water previously identified as WOTUS will no longer have that classification (Division of Agriculture file photo)

FAYETTEVILLE, Ark. — The highly anticipated new waters of the United States, or WOTUS, rule released Tuesday by the Environmental Protection Agency will remove scores of water bodies from regulation under the Clean Water Act.

Absent from the new rule is the “significant nexus”  test which had been part of WOTUS since the 2006 Supreme Court decision Rapanos vs. U.S. In that decision, Justice Anthony Kennedy wrote that wetlands should be included in the definition of WOTUS if they shared “significant nexus” with a water already identified as a WOTUS.

The EPA’s new WOTUS rule follows the May 25 U.S. Supreme Court decision in Sackett v. EPA. In that case, the high court narrowed the definition of WOTUS to include open, flowing bodies of water such as streams, rivers, lakes, and the ocean, along with those wetlands that share a continuous surface connection with such bodies of water.

Prior to the Sackett decision, WOTUS included adjacent wetlands, defining “adjacent” as “bordering, contiguous, or neighboring.” In its updated rule, EPA redefined '”adjacent” as “having a continuous surface connection,” bringing it in line with the Sackett decision.

“The effects of EPA’s WOTUS decision will definitely be felt by ag producers, especially when it comes to wetlands,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said.

The new WOTUS rule reduces the number of waters and wetlands that would require a permit for point source pollution. 

“After the decision in Sackett, naturally the EPA was going to take another look at its definition of WOTUS,” Brigit Rollins said. With “significant nexus” gone, “now only wetlands that share an unbroken or continuous surface water connection with water already identified as WOTUS are included.”

This means that numerous bodies of water that previously would have been considered WOTUS will no longer have that classification.

“EPA is saying that wetlands which would share a surface water connection with a WOTUS but no longer have that connection due to manmade barriers such as levies, dikes or sand dunes will not be included in the WOTUS definition,” Rollins said.

Pre-Sackett WOTUS

After the Biden Administration’s March 2023 WOTUS rule went into effect, courts enjoined it in 28 states. There are three lawsuits outstanding regarding the 2023 rule: Texas v. EPA, West Virginia v. EPA, and Kentucky v. EPA. With EPA’s final decision now out, the lawsuits are paused, and their future uncertain.

“It’s hard to say what will happen with those,” Rollins said. “We probably won’t know the outcome for a couple more weeks. Those lawsuits may be dropped, or those involved may go on and litigate.”

Rollins, who focuses on environmental law in her research, has been providing timely updates on WOTUS through 2023, both online and via webinar.

On Nov. 15, Rollins will continue the discussion of WOTUS in her next NALC webinar, “What’s Up with WOTUS: Post-Sackett and Beyond.” The third installment in Rollins’ series will cover subsequent events following the Sackett decision and long-term effects of the ruling. Registration is online. Recording of the first and second installment in the series are also available online.

Why WOTUS matters

WOTUS is a critical component of the Clean Water Act. The CWA was established by Congress in 1972 with the goal of improving the country’s water quality. To achieve that goal, certain bodies of water are declared as WOTUS under the CWA, granting them protections.

“The WOTUS definition has been the subject of considerable debate over the years, but 2023 has been a considerably busy year for all things WOTUS,” Rollins said.

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

For updates on agricultural law and policy developments, subscribe free of charge to The Feed, the NALC’s newsletter highlighting recent legal developments facing agriculture, which issues twice a month.

About the National Agricultural Law Center

The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The NALC works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community.

The NALC is a unit of the University of Arkansas System Division of Agriculture and works in close partnership with the USDA Agricultural Research Service, National Agricultural Library.