‘The Deal with Dicamba’ the focus of May 15 NALC webinar

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

FAYETTEVILLE, Ark. — The rollercoaster of changing state and federal policies regarding dicamba has kept producers on their toes in recent years. Earlier this year, a federal court in Arizona called into question the future of over-the-top dicamba use for producers.

Brigit Rollins, staff attorney for the National Ag Law Center, will present a webinar on "The Deal with Dicamba" on May 15. (U of A System Division of Agriculture file photo)

“The Feb. 6 decision from the U.S. District Court of Arizona was another major development in the ongoing saga impacting producers’ methods for protecting their crops,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said. “Pending a possible appeal, producers will not be able to rely on over-the-top dicamba as they may have in the past.”

On Feb. 14, the U.S. Environmental Protection Agency issued a notice stating that it would allow farmers and producers to use their remaining dicamba stocks.

“We’ve seen this in the past, where the EPA allows producers to use dicamba stock that was purchased prior to a ruling,” Rollins said. “The end date for sale and distribution of dicamba stocks, as well as the end date for use of existing stocks, varies from state to state, so it’s important that producers consult the EPA’s notice to ensure they are complying with the new policy.”

May 15 webinar

Rollins will discuss dicamba during the next National Agricultural Law Center webinar, which will be held on May 15. The webinar, titled, “The Deal with Dicamba: Overview of Recent Legal Developments,” will begin at 11 a.m. Central/Noon Eastern. The event has no cost and registration is available online.

A recurring theme in the ongoing saga of dicamba lawsuits is environmental plaintiffs claiming the EPA has violated both the Endangered Species Act, or ESA, and the Federal Insecticide, Fungicide, and Rodenticide Act, known as FIFRA.

“A large part of why we get these court decisions impacting access to products such as dicamba is due to the EPA’s approach to meeting its ESA responsibilities while carrying out actions under FIFRA,” Rollins said. “The EPA is in the process of developing its new policy for how it meets these responsibilities. Because of this, we are expecting future changes to how producers are able to use pesticide products.”

Rollins discusses the history of dicamba and policy in her article series “The Deal with Dicamba,” which is available online on the NALC website. She also reviewed the EPA’s new ESA-FIFRA policy in a previous NALC webinar, which is available to watch online.

“Brigit is an expert in pesticide developments and policy,” NALC Director Harrison Pittman said. “She has created great NALC resources on this topical area, such as the NALC Endangered Species Act Manual, and has presented excellent webinars in the past.”

The NALC has had two prior “The Deal with Dicamba” webinars presented by Rollins. Recordings can be found online in the NALC’s Webinar Series archive.

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.

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

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.

Western Conference: NALC’s Rollins to discuss future of pesticide use in the U.S.

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

FAYETTEVILLE, Ark. — Court decisions and policymakers are reshaping pesticide use in the United States, and a recent California proposal, the Sustainable Pest Management Roadmap for California, is designed to phase out certain pesticides altogether.

National Ag Law Center's Brigit Rollins: "crucial" for producers to stay on top of pesticide developments (U of A System Division of Agriculture file photo)

“California’s proposed policy would result in the state phasing out use of ‘high-risk’ pesticides by 2050,” Brigit Rollins said. “If that policy comes to fruition, it will of course have major ramifications for Western producers.”

Rollins will examine what is on the horizon for Western pesticide use during the NALC’s Western Agricultural and Environmental Law Conference. Her session, “The Future of Pesticides in the Western States: The Latest Legal Developments & Trends,” will discuss the California proposal and other policy developments from recent years that could shake up Western agriculture.

The conference will be held June 13-14 at the University of Nevada, Reno. Registration is online, and a livestream option for the program is available.

“Over the last several years, we’ve seen a series of court decisions, state laws and new federal policy that have influenced pesticide use,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said. “For producers, staying on top of these changes, such as the recent ruling out of a federal court in Arizona, is crucial.”

The Feb. 6 decision from the U.S. District Court of Arizona resulted in the U.S. Environmental Protection Agency vacating the 2020 registration allowing over-the-top use of dicamba-based pesticides XtendiMax, Engenia and Tavium. Following the federal court’s ruling, EPA released a memo stating that farmers are able to use existing dicamba stocks during the 2024 growing season.

During her session, Rollins will also explain EPA’s new policy approach for protecting endangered species from pesticide exposure, and what those changes could mean for pesticide users.

“The EPA’s new policy for how it carries out its Endangered Species Act responsibilities holds enormous weight for the future of pesticide use,” Rollins said. “As the EPA further integrates pesticide registration with the ESA, it won’t be surprising to see greater restrictions on pesticide use coming down the line as a result. I look forward to providing an update on the latest in pesticide use at the 2nd Annual Western Conference.”

Continuing education available

The Western Conference has been approved for continuing legal education credit in Nevada, and will be submitted for CLE approval in Arizona, California, Idaho, Oregon and Utah. The conference has also been approved for continuing education by the American Society of Farm Managers and Rural Appraisers. The NALC will coordinate with attendees to self-report in other states.

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.

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

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.

What’s next in a post-dicamba world? NALC’s 11th Annual Mid-South to address the issue

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

FAYETTEVILLE, Ark. — What’s next for users and makers of crop protection products in a post-dicamba, pro-Endangered Species Act environment? That’s among the questions to be answered at the 11th Annual Mid-South Agricultural & Environmental Law Conference on June 6-7, 2024, in Memphis, Tennessee.

The National Agricultural Law Center's 11th Annual Mid-South Conference will feature a session on crop protection products, presented by EPA's Rod Snyder and NALC's Brigit Rollins. (Image courtesy Rod Snyder)

Rod Snyder, senior advisor for agriculture to the U.S. Environmental Protection Agency administrator, and Brigit Rollins, staff attorney at the National Agricultural Law Center, will be addressing the issue as co-presenters for “Tomorrow’s Harvest:  An Overview of the Regulatory and Litigation Landscape for Crop Protection Products.”

Rollins said recent litigation has spurred significant changes in pesticide regulation, including vacating the registration for widely used herbicides and shifts in EPA enforcement philosophy.

“Over the last few years, we've seen dicamba become unavailable for use more than once as the direct result of lawsuits and subsequent court decisions,” she said. “Going forward, we're expecting to see additional restrictions on pesticide use as EPA works to come into better compliance with the Endangered Species Act.”

One outcome of the EPA’s shift toward a closer alignment with ESA will likely mean increased use restrictions for applicators.

“With changes to pesticide labels coming in rapidly, and sometimes unexpectedly for producers, staying informed is critical,” Rollins said.

About the Mid-South

The 2024 Mid-South conference will be held at the University of Memphis Cecil C. Humphreys School of Law. The annual “Beer & BBQ” networking dinner will be held on the evening June 6 at The Rendezvous ahead of the main conference program on June 7.

“The Mid-South is an important event for the NALC and our stakeholders,” Harrison Pittman, director of the NALC, said. “The Mid-South region of the country is uniquely impacted by numerous agricultural issues, both long-standing and emerging. Our goal with the Mid-South is always to bring top-notch presenter talent and information, and we are again accomplishing that in our 11th year.”

The Mid-South also features an “Early Bird” online program on Tuesday, May 14. Rollins is presenting at the “Early Bird” as well, providing an ag and food law update alongside NALC Senior Staff Attorney Elizabeth Rumley. Their “Early Bird” session will cover topics like Prop 12, waters of the U.S. and the Farm Bill. Conference attendees who register for the Mid-South by Monday, May 13 can view the online “Early Bird.”

Full session titles and speakers for the main conference program include:

• Estate Planning & The Farm: Top Tips and Practice Pointers — Connie Haden, Founder & Partner at The Law Firm of Haden & Colbert

• Fourth Amendment and Agriculture: Warrantless Access to Ag & Private Rural Lands — Robert Frommer, Senior Attorney, Institute for Justice and Joshua Windham, Attorney and Elfie Gallun Fellow in Freedom and the Constitution, Institute for Justice

• Tomorrow’s Harvest:  An Overview of the Regulatory and Litigation Landscape for Crop Protection Products — Rod Snyder, senior adviser for agriculture to the EPA Administrator and Brigit Rollins, staff attorney, National Agricultural Law Center

• USDA National Appeals Division 101: What You and Your Farm Client Need to Know — Danielle Lake, deputy regional director, USDA National Appeals Division

• Artificial Intelligence in Law Practice: Navigating the Ethical Landscape — Ellen Murphy, professor of practice, Wake Forest University School of Law

• 2024 and Beyond: Ag Tax Update and the Corporate Transparency Act — Kristine Tidgren, director, Center for Agricultural Law & Taxation, Dolezal Adjunct Associate Professor, Agricultural Education, Iowa State University

Continuing education available

The Mid-South will be submitted for CLE accreditation in Arkansas, Kansas, Mississippi, Missouri, and Tennessee. Approval for CE will also be sought from the American Society of Farm Managers and Rural Appraisers.

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.

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

Arizona federal court vacates over-the-top dicamba registration

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

FAYETTEVILLE, Ark. — A federal court in Arizona has overturned the 2020 dicamba registrations that allowed over-the-top applications of three dicamba products, XtendiMax, Engenia and Tavium, leaving a cloud of uncertainty for farmers and defendants.

Tuesday’s decision is the latest in an almost decade-long legal back-and-forth over the availability and use of dicamba.

ROLLINS: Arizona court decision leaves uncertainty for farmers, defendants. (U of A System Division of Agriculture file photo)

In an order from the U.S. District Court of Arizona, the court concluded that the U.S. Environmental Protection Agency failed to comply with the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA’s, public notice-and-comment requirements when approving a “new use” of dicamba. The court order is available online.

Dicamba is an herbicide that targets broad-leafed plants and is used to combat weeds that have grown resistant to glyphosate, including palmer amaranth, commonly known as pigweed. Prior to 2016, dicamba has been used as a pre-emergent, meaning that it was applied to the ground in late winter or early spring before crops were planted. Older forms of dicamba were prone to volatility causing the pesticide to move off target and damage nearby fields. By applying dicamba as a pre-emergent, risk of off-target damage was greatly reduced. However, in 2015, Monsanto Co., which is now part of Bayer, released a line of soybean and cotton seeds engineered to be resistant to dicamba. The following year, EPA approved over-the-top use of dicamba for the first time. Several companies brought dicamba products to market.

“The decision to approve over-the-top use of dicamba was very controversial,” Brigit Rollins, staff attorney for the National Agricultural Law Center, said. “Lawsuits challenging that decision were filed almost right away.”

According to Bayer’s website, its dicamba products are registered for use in all but 14 of the 48 contiguous states, including Arkansas.

The Feb. 6 court order from the U.S. District Court of Arizona is not the first time the dicamba registration has been vacated. In June 2020, the U.S. Ninth Circuit Court of Appeals vacated the then-current dicamba registration for violating FIFRA. Following that cancel order, EPA re-registered dicamba for over-the-top use through 2025. Once again, the same parties that had challenged the previous dicamba registration filed a lawsuit against EPA for re-approving over-the-top use.

Wait and see
For now, it’s a wait-and-see situation for farmers who use the products and the defendants.

In an online statement, defendant-intervenor Bayer, said “We respectfully disagree with the ruling against the EPA's registration decision, and we are assessing our next steps. We also await direction from the EPA on important actions it may take in response to the ruling.”

“Now that the court has issued its decision, we’re waiting to see what both EPA and the defendants will do next,” Rollins said. “Last time around, EPA issued its formal cancellation order pretty quickly after the decision, but the agency did allow people who had already purchased dicamba for the 2020 growing season to use up their existing stocks. We’re waiting to see if EPA will do the same on this go around.”

Rollins added that it’s likely the defendants will appeal this ruling.

“If they do, we’ll be waiting to see whether the district court’s ruling is stayed while the appellate court considers the case,” she said.

While the timeline on EPA’s response to the court’s order is uncertain, the decision by the Arizona federal court indicates a forthcoming Notice of Intent to Cancel over-the-top use of dicamba. Currently, Arizona is the only state in the Ninth Circuit where dicamba is available for over-the-top use.

Mention of product names does not imply endorsement by the University of Arkansas System Division of Agriculture.

More on the history of dicamba can be found on the NALC website in a series authored by Rollins, “The Deal with Dicamba.”

Rollins is set to discuss the future of pesticides in the western U.S. at the Western Agricultural and Environmental Law Conference. The event will be held at the University of Nevada, Reno, on June 13-14 with a livestream option available. Conference information and registration is available online.  

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.

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.

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.

NALC’s Rollins to discuss WOTUS definition after SCOTUS ruling in July 19 webinar

By Tru Joi Curtis
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — How the Environmental Protection Agency will define the key Clean Water Act term “waters of the United States,” or WOTUS, is unclear following a ruling by the U.S. Supreme Court on a case involving wetlands, said National Agricultural Law Center Staff Attorney Brigit Rollins.

Brigit Rollins, staff attorney for the National Agricultural Law Center, will present a July 19 webinar on the current state of WOTUS and the recent Sackett ruling from the U.S. Supreme Court.

The U.S. Supreme Court’s ruling in Sackett vs. Environmental Protection Agency determined that only those wetlands that share a continuous surface connection with a water body recognized under the WOTUS definition can be regulated under the Clean Water act, or CWA. This has created some inconsistencies with the EPA’s 2023 definition of WOTUS which includes some wetlands that do not share a surface connection with another body of water.

The definition of WOTUS determines what water bodies can be protected by the CWA, which is the primary federal law regulating water pollution in the United States. The CWA requires anyone who might introduce pollutants into a body of water protected under the CWA to acquire a permit from EPA. Introducing pollutants into a WOTUS without a permit can result in fines and criminal prosecution under the CWA. Therefore, it is incredibly important to understand the scope of WOTUS.

“The EPA will most likely have to revisit its 2023 definition of WOTUS because that rule is out of step with the court’s ruling,” Rollins said. “In particular, the Sackett opinion limits what wetlands can be covered by the Clean Water Act beyond what the EPA included in its 2023 rule.”

Confusion over the WOTUS definition and the protection wetlands should receive is nothing new. Since the CWA was passed in 1972, the degree of protection for wetlands has been a point of contention for policymakers.

Rollins will be discussing the current state of WOTUS and the recent ruling from the U.S. Supreme Court during NALC’s upcoming webinar, “What’s Up with WOTUS: A Look at the Current WOTUS Definition and Recent Supreme Court Decision.” This webinar will be held Wednesday, July 19, at 11 a.m. Central/noon Eastern.

“I look forward to shedding some light on the court’s recent ruling, and what that may mean for the definition of WOTUS going forward,” Rollins said.

The webinar is free of charge and registration is online.

“We are thrilled to have Brigit discuss the court’s ruling and the WOTUS definition in this webinar,” NALC Director Harrison Pittman said. “Because the definition affects so many industries and how they conduct their work, it’s critical to understand the status of WOTUS.”

The July webinar is the second in a series regarding WOTUS. The information and recording for the first part, “What’s Up with WOTUS: An Overview of ‘Waters of the United States’ and Why it Matters to Agriculture,” can also be found online.

Rollins will present a third installment on Nov. 15, titled, “What’s Up with WOTUS: Post-Sackett and Beyond.” The November webinar will look at subsequent events and consider the long-term effects of the Sackett ruling. Registration and information for the third part of the series is available online.

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.

Supreme Court WOTUS ruling narrows definition of wetlands, but what about levees?

By John Lovett
University of Arkansas System Division of Agriculture
Arkansas Agricultural Experiment Station

FAYETTEVILLE, Ark. — The U.S. Supreme Court’s ruling this week narrowed the definition of what is considered “waters of the United States” in the Clean Water Act. But there remains room for discussion on wetlands separated by levees for flood control and dry creek beds, said the National Agricultural Law Center’s Brigit Rollins.

WOTUS RULING —The U.S. Supreme Court's latest WOTUS ruling provides guidance for the EPA to revisit definitions of wetlands subject to the Clean Water Act, says National Agricultural Law Center attorney Brigit Rollins. (U of A System Division of Agriculture photo)

The high court’s opinion on a case out of Idaho, Sackett vs. Environmental Protection Agency, rejected the EPA’s argument that a wetland near Priest Lake on the Sackett's property should be considered “waters of the United States,” or WOTUS, because it did not share a continuous surface connection to the lake. Thus, the court found, the wetland should not be subject to the Clean Water Act, and the Sacketts are now cleared to build their home on the land after 16 years of litigation.

“The EPA is probably going to have to revisit its most recent definition of WOTUS, in no small part because what is in the EPA’s 2023 definition does not comport with what is in this opinion,” Rollins said.

The justices held that the Clean Water Act’s definition of “waters” should be limited to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’ and to adjacent wetlands that are ‘indistinguishable’ from those bodies of water due to a continuous surface connection.”

Rollins said the opinion gets to the heart of what wetlands can be covered by the Clean Water Act by stating it has to share some kind of continuous surface connection.

However, she said, discussion may remain for narrowing what is considered an “adjacent wetland” if it contains a manmade levee for flood control.

“If it is a wetland that would share a continuous surface water connection with, say, the Mississippi River, if not for a levee … are those now no longer jurisdictional? Questions like this will be left for agencies and lower courts to determine how the opinion is interpreted,” Rollins said.

A question also remains, Rollins said, how the ruling will impact land in Western states that contain dry creek beds, also known as “washes,” that drain into a body of water covered by the Clean Water Act.

Rollins, who specializes in environmental law as it intersects with agriculture, will present a webinar on the recent Supreme Court decision on July 19 as part two of a two-part webinar series from the National Agricultural Law Center. Register for the free webinar by visiting the National Agricultural Law Center website. To watch the recording of the first WOTUS webinar in the series visit the website https://nationalaglawcenter.org/webinars/wotus/.

To learn more about Division of Agriculture research, visit the Arkansas Agricultural Experiment Station website: https://aaes.uada.edu. Follow on Twitter at @ArkAgResearch. To learn more about the Division of Agriculture, visit https://uada.edu/. Follow us on Twitter at @AgInArk. To learn about extension programs in Arkansas, contact your local Cooperative Extension Service agent or visit www.uaex.uada.edu.

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.

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.

Texas federal court grants WOTUS injunction for two states; two more requests pending

By Mary Hightower
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — A federal court has halted implementation of the Environmental Protection Agency’s new rule defining waters of the United States, and two more injunction requests are pending in cases involving 25 states, including Arkansas, said Brigit Rollins, National Agricultural Law Center staff attorney.

The new rule went into effect on Monday. The U.S. District Court in the Southern District of Texas issued the injunction Sunday night in Texas vs. EPA. The case halts implementation of the new EPA rule in both Texas and Idaho.

An injunction granted by a federal court judge is only the beginning for three cases challenging EPA's new rule that defines waters of the U.S., or WOTUS, according to Brigit Rollins of the National Agricultural Law Center. (U of A System Division of Agriuclture image)

There are two other cases pending — Kentucky Chamber of Commerce vs. EPA, which involves only Kentucky, and State of West Virginia vs. EPA, which involves 24 states, including Arkansas. Following the Texas action, attorneys in the two other cases filed additional briefs Sunday noting the injunction.

The injunction is “not the end of the road. That’s just sort of the first step in the lawsuit,” Rollins said. “The arguments and the claims are still lingering” and need to be heard.

“Should the judges in those other two lawsuits issue injunctions, there are a couple of things that are going to happen right away: Once the judge issues the injunction, the current WOTUS rule will no longer be in legal effect,” Rollins said. “What that means is that EPA is going to be applying the previous WOTUS rule that was in place.”

At issue in all three cases is how EPA defines “waters of the U.S.,” known as WOTUS. That definition is critical to enforcement of the Clean Water Act.

Muddying the waters

The legal vortex surrounding WOTUS means the waters may get muddier before clarity is achieved. Rollins said the situation harkens back to EPA’s 2015 rule redefining WOTUS and the resulting lawsuits.

“What ultimately ended up happening was that more than 50 percent of the states had an injunction on that 2015 rule,” she said. “What it meant for those states is that they were applying a different WOTUS rule than in the states that had not joined the suits.

“It’s not impossible that we could see that again,” Rollins said.

“It creates confusion for landowners, members of agricultural communities, and members of industrial communities. I would imagine it would be particularly challenging for anyone who is operating in multiple states,” she said. “You might be subject to different requirements in different states.

“There is the potential for issues to arise with pending Clean Water Act permits that are sort of stuck between those different rules,” Rollins said. “And at the moment it's going to be hard to say what that means for those permits.”

The National Agricultural Law Center has a page dedicated to WOTUS updates.

For updates on WOTUS and other agricultural law developments, subscribe free of charge to The Feed, the NALC’s twice-monthly newsletter highlighting recent legal developments facing agriculture.

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.

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.