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.

Tenth annual Mid-South Conference looks behind the bench at SCOTUS

By Mary Hightower
U of A System Division of Agriculture

The common portrayal that the U.S. Supreme Court as being made up of liberal vs. conservative voting blocs simply isn’t true, said Tim Bishop, an attorney who has argued significant cases before the high court.

Bishop, a partner at Mayer Brown, in Chicago has argued eight cases and briefed more than 80 before the U.S. Supreme Court. He was among the presenters June 9 for the 10th annual Mid-South Agricultural and Environmental Law Conference. Bishop covered several SCOTUS-related topics, including decision composition, recusals and their potential effects on decision making and implications of the Dobbs decision leak.

Tim Bishop, partner at Mayer Brown, presents on environmental law before the U.S. Supreme Court at the 10th Annual Mid-South Agricultural & Environmental Law Conference on June 9 in Memphis, Tennessee. Bishop recently argued the Prop 12 case before SCOTUS. (The National Agricultural Law Center photo by Drew Viguet).

The conference opened with Harrison Pittman, director of the National Agricultural Law Center, which organized the conference more than a decade ago. The first Mid-South was held at Harrah’s, one of the riverboat casinos in Tunica, Mississippi.

“We literally shut it down,” Pittman said with a laugh. “We were the last thing ever held at Harrah’s Casino.”

When the first attendees walked out the door, casino personnel chained it closed behind them.

“Not a small chain, but a big chain with a big lock,” Pittman said. “And it was over. We shut it down.”

The following year, Pittman said, the conference was moved to its current site, at the University of Memphis Cecil C. Humphreys School of Law.

SCOTUS

Bishop may be best known for the case challenging California’s Proposition 12, which would bar the sale of pork from pigs not raised under specific conditions. The high court upheld the law as constitutional.

Bishop said that in reading about SCOTUS in the media, one would have the impression that “this is a deeply conservative, pro-business court with a solid six-justice majority intent on remaking the law the way the Federalist Society wants it to be.

“It’s not true,” he said and cited several cases from the weeks preceding his presentation to show that justices did not vote in a six-justice block, including the National Pork Producers Council and Arkansas Farm Bureau Federation vs. Ross, the Proposition 12 case, Andy Warhol Foundation vs. Goldsmith and Sackett vs. EPA, the Waters of the United States case.

“None of the cases from the last few weeks has the lineup that the New York Times expected occur,” he said.

Heirs property

New Orleans attorney Ebony Woodruff called heirs property “the worst problem you never heard of. It’s the legal term for land inherited without a will.”

Woodruff, a former legislator and consul, was the first woman elected to represent District 87 in the Louisiana House of Representatives. She is currently the director of the Agricultural Law Institute for Underserved and Underrepresented Communities at Southern University Law Center, one of the NALC’s partners.

“Over 70 percent of Americans don’t have a will or have one that’s invalidated,” she said.

Heirs property is found in dozens of counties from Texas to Virginia in areas that tend to be poor and rural.

“Heirs property is generally framed as a black issue, but it affects many people. It’s a leading cause of black land loss,” Woodruff said.

With heirs property, typically there are multiple owners, sometimes through multiple generations.

Without obtaining agreement from everyone with a share, owners can’t get loans or mortgages, conduct leasing or be part of U.S. Department of Agriculture programs. And as she found after Katrina, many with heirs property could not get FEMA disaster relief.

Woodruff said the Uniform Partition of Heirs Property Act, restructures the way partition sales occur, offering protection to heirs’ property owners. The law has been adopted in 20 states and the Virgin Islands, including Arkansas, Texas and Mississippi.

Long-term care

Robert Moore, an attorney and research specialist with the Agricultural and Resource Law Program at The Ohio State University, a partner of the NALC, discussed how farm families can prepare themselves for long-term care.

“Twenty percent of 65-year-olds will need some type of long-term care for longer than five years,” he said. “One-third may never need it.”

“It’s this ‘more than five years’ that puts a lot of farms in jeopardy,” Moore said. “Sixty-nine percent of 65-year-olds will need three years of care — two years at home and one in a facility."

He said that that one year will be unpaid home care by a spouse or other family member. One year will be paid care; someone who comes in to feed and bathe the family. One year will be in a nursing home.

Moore, citing a survey by GenWorth Financial, said the cost of the care at home would be nearly $62,000, while the one year of nursing home care would be more than $94,000, bringing the average long-term care costs to $156,672.

“About two-thirds of 65-year-olds can expect a long-term care cost or expense, of about $150,000,” he said.

Moore said throwing everything into a revocable trust may not be the right tactic, and it’s important for farms to conduct a long-term care risk assessment to know what strategy to use in facing the challenges that come with age. Risk assessment enables users to analyze the potential long-term-care costs, income and savings to determine the actual risk to farm assets.

“This risk assessment is really a requirement of good long-term planning,” he said.

Moore said a tool to help farms conduct a risk assessment is available online.

Solar farms

Rusty Rumley, senior staff attorney for NALC, talked about the growing demand for solar power and the growing demand for land on which to place panels.

“Solar is going to take up larger chunks of land,” he said. He noted a caller from Texas who was approached by a solar company to lease his pasture land. According to the National Agricultural Statistics Service, the average rental rate for pastureland in Texas was $7.70 an acre. The pastureland owner signed a 25-year lease with the solar company for $2,500 an acre.

Rumley cautioned that solar leases are not like ag leases.

“They may look a little squirrely,” because they are longer in length, more complicated and require a lot of due diligence on the part of the land owner, he said. “They may affect your kids and your grandkids.”

And just because a landowner signed a lease, doesn’t mean the project will be built, Rumley said. Another bit of caution involves the end of the lease, since some leases aren’t clear on who would decommission the solar arrays.

The 11th Annual Mid-South Agricultural and Environmental Law Conference is set for June 6-7, 2024 in Memphis, Tennesse.

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

Governor Hutchinson’s Response To SCOTUS Affordable Care Act Ruling

LITTLE ROCK – The United States Supreme Court dismissed a lawsuit filed by 18 states that challenged the constitutionality of the Affordable Care Act.

Governor Asa Hutchinson’s response:

“The Supreme Court’s ruling, dismissing the case on procedural grounds, leaves the question of the constitutionality of the Affordable Care Act unanswered. In my view, the question of whether the Congress overreached its powers in enacting the far-reaching health care law was important and a legitimate issue to be resolved by the Supreme Court. The fact that the Court dismissed the case on the lack of standing makes it unlikely that the court will reconsider the issue in the future.

“For that reason, it is important for Arkansas to pursue the ARHOME waiver request in order to avoid the interruption of health care services to hundreds of thousands of Arkansans, as we also continue to innovate in ways that will motivate Arkansans to take personal responsibility for their health and future.

“ARHOME, our new Medicaid expansion plan, will require insurance carriers to do more than cover the costs of medical care. We want the companies to play a role in motivating Arkansans to get healthy through changes in lifestyle such as quitting smoking, exercising more, getting preventative wellness exams, and prenatal care. We want our health care to make Arkansans healthier.”