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The question before the U.S. Supreme Court was whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, in this case, groundwater. Many had hoped the Court’s answer to this question would clarify longtime ambiguity under the CWA. But given the complexity of the issue, that was not to be.

February 6, 2020 | Kristine A. Tidgren

On January 23, 2020, the Environmental Protection Agency (EPA) and the U.S. Department of the Army signed the final Navigable Waters Protection Rule (NWPR), a rule that defines “waters of the United States” or the jurisdictional scope of the Clean Water Act (CWA).

January 1, 2020 | Kristine A. Tidgren

As we move into 2020, we're dedicating this post to reviewing important agricultural law developments from the past year. Most of these issues continue to evolve, and we look forward to providing updates as they occur. Happy new year!

September 13, 2019 | Kristine A. Tidgren

On Thursday, September 12, 2019, the Environmental Protection Agency and the Department of the Army released a final rule to repeal the embattled 2015 Clean Water Rule, also known as WOTUS.

The Seventh Circuit recently ruled that the USDA acted arbitrarily and capriciously when it treated several acres of an Indiana couple’s farm as a converted wetland and rendered their entire farm ineligible for USDA benefits.  Boucher v. USDA, No. 16-1654 (7th Cir. 2019).

August 23, 2019 | Kristine A. Tidgren

On August 21, 2019, the United States District Court for the Southern District of Georgia became the second federal court in the past three months to rule that the 2015 Waters of the United States Rule (the WOTUS Rule), was improperly issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

On August 7, 2019, the Iowa Court of Appeals ruled that an alleged farm nuisance was a continuous, rather than permanent, nuisance. As a result, the court held that the statute of limitations did not bar the neighbors’ claims of nuisance, trespass, and negligence.

On May 28, 2019, the United States District Court for the Southern District of Texas determined that the EPA and U.S. Army Corps of Engineers violated the Administrative Procedure Act (APA) when they promulgated the final Clean Water Rule in 2015.

April 17, 2019 | Kristine Tidgren and Kitt Tovar

On March 27, 2019, two environmental groups—Iowa Citizens for Community Improvement and Food and Water Watch—filed a petition in state court seeking injunctive and declaratory relief against the State of Iowa, the Department of Natural Resources and others.

February 25, 2019 | Kristine A. Tidgren

On February 19, 2019, the United States Supreme Court granted certiorari in a Clean Water Act (CWA) case with far-reaching implications for many industries, including agriculture.

December 31, 2018 | Kristine A. Tidgren

On this, the last day of 2018, we look back at key agricultural and taxation developments from the past year. Many of these issues continue to significantly impact agricultural producers, and we will continue to monitor these evolving issues as we head into 2019. Happy New Year!

December 14, 2018 | Kristine A. Tidgren

On December 11, 2018, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers proposed a revised definition for “waters of the United States” or WOTUS.

September 12, 2018 | Kristine A. Tidgren

Just when many thought the 2015 Clean Water Rule or “WOTUS” was relegated to the archives of history, it has been revived. In fact, as of mid-September 2018, WOTUS is the controlling definition for “waters of the United States” in 22 states. As of September 18, 2018, Iowa was no longer among them. And the status for the remaining states could change at any time.

July 6, 2018 | Kristine A. Tidgren

Many laws passed during the 2018 Iowa Legislative Session impact agricultural producers and landowners. A number of these laws went into effect July 1, 2018. Following is a summary of the highlights.

On April 12, 2018, the United States Court of Appeals for the Fourth Circuit vacated a district court’s judgment and held that a discharge that passed from a point source through groundwater to navigable waters could support a Clean Water Act (CWA) claim. The Fourth Circuit in Upstate Forever v.

Update: On May 2, the D.C. Circuit Court of Appeals issued the mandate vacating the 2008 final rule.

Update: Governor Reynolds signed SF 512 into law on January 31, 2018.

December 29, 2017 | Kristine A. Tidgren

As the year concludes, we’re taking some time to review the most significant happenings in agricultural law and taxation in 2017. Some closed chapters on drawn-out litigation or administrative action. Others signal the beginning of much more activity to come. In any event, 2017 did not disappoint in terms of lots to discuss. We review these highlights below, in no particular order.

On April 11, 2017, the United States Court of Appeals for the District of Columbia vacated an EPA final rule that had been in place for nine years.

June 29, 2017 | Kristine A. Tidgren

On June 27, 2017, the EPA and the U.S. Army Corps took the first step to rescind and replace the embattled Clean Water Rule, also called "Waters of the United States" or WOTUS.

Last summer, a federal court found a California landowner liable for violating the Clean Water Act (CWA)[1] because he tilled a 450-acre parcel of his land to plant wheat. He is now preparing for an August 14, 2017, trial. At issue in the trial will be (1) the scope of his CWA violations, (2) the appropriateness of the United States’ requests for restoration and mitigation, and (3) the amount of his civil penalty. 

Last week, the United States Court of Appeals for the District of Columbia vacated an EPA final rule that had been in place for nine years. The Rule exempted most farms from CERCLA and EPCRA reporting requirements for air releases from animal waste. 

March 18, 2017 | Kristine A. Tidgren

Update: On April 11, 2017, DMWW announced that it would not be appealing this decision.

Here is an updated list on the pleadings and resources on the Des Moines Water Works litigation. 

March 9, 2017 | Kristine A. Tidgren

Update: The 2017 Iowa Legislative Session ended on April 22, 2017. No water quality legislation was enacted.

In a filing last evening, the parties to the Des Moines Water Works lawsuit—the Board of Water Works Trustees and the drainage districts—again showed they are miles apart in their interpretation of the law.

January 27, 2017 | Kristine A. Tidgren

The Iowa Supreme Court today issued a ruling favoring the drainage districts in three northwest Iowa counties in the high profile Des Moines Water Works nitrate litigation. This ruling effectively means that the federal court will enter summary judgment in favor of the districts with respect to DMWW’s claims for money damages and injunctive relief and will likely grant similar relief with respect to DMWW’s claims alleging violations of DMWW’s constitutional rights.

December 30, 2016 | Kristine A. Tidgren

As we close out the year, we pause to review important developments in agricultural law from 2016. The year saw several notable rulings under the Clean Water Act,as well as the progression of several key Clean Water Act cases. Federal regulators unveiled new rules, and Congress passed legislation impacting producers and ag businesses.

November 30, 2016 | Kristine A. Tidgren

The November 8, 2016, election will be long-remembered. Although the result was surprising to many, it was largely driven by rural Americans seeking change to the status quo. But, what will a new Administration actually mean for rural America?

The United States Supreme Court unanimously ruled today that an approved jurisdictional determination from the U.S. Army Corps of Engineers finding that property contains “waters of the United States” is “final agency action” subject to judicial review. This is a big victory for landowners throughout the country.

The drainage districts in the Des Moines Water Works (DMWW) lawsuit have now filed their second motion for partial summary judgment. Last fall, they asked the judge to rule in their favor as a matter of law on DMWW’s state law tort claims, such as nuisance and negligence.

March 31, 2016 | Kristine A. Tidgren

Yesterday, the Supreme Court of the United States heard oral arguments in a case that tests the authority of a federal agency to effectively restrict a property owner’s land use choices without an opportunity for judicial review. U.S. Army Corps v. Hawkes

In a divided 2-1 opinion, a three-judge panel ruled yesterday that the United States Court of Appeals for the Sixth Circuit has original jurisdiction to determine the validity of the Clean Water Rule.

During it's last public meeting on February 19, the Iowa Utilities Board stated that it will present its order regarding the Dakota Access LLC petition to build a crude oil pipeline across Iowa on March 9 or 10. That order will also determine whether Dakota Access will be allowed to exercise eminent domain over the nearly 300 tracts of land for which voluntary easements have not been granted.

January 26, 2016 | Kristine A. Tidgren

This month has seen several important developments in the Des Moines Water Works (DMWW) lawsuit against drainage districts in three northwest Iowa counties. On January 11, Judge Bennett ruled that the Iowa Supreme Court should decide four questions of Iowa law implicated by the lawsuit's tort and constitutional claims.

January 12, 2016 | Kristine A. Tidgren

Yesterday saw a big development in the Des Moines Water Works case against three northwest Iowa drainage districts. Judge Bennett certified four questions of Iowa law to the Iowa Supreme Court.:

December 30, 2015 | Kristine A. Tidgren

As we store away the wrapping paper and pull out the New Years’ hats and horns, we thought it would be a good time to review the significant agricultural law developments of 2015. While this review is not comprehensive or intended to rank the topics in order of importance, it does demonstrate how much can change in a year.  So, pour that last glass of egg nog and savor the last few hours of the year. If this list is any indication, it’s going to be a busy 2016.

October 26, 2015 | Kristine A. Tidgren

We have been keeping you up to date on the status of Dakota Access, LLC's petition to obtain a permit from the Iowa Utilities Board (IUB) to construct a crude oil pipeline across Iowa.  Dakota Access, a private Texas company, filed its permit application on January 20, 2015. Since that time, the company’s land agents have negotiated voluntary easement agreements with owners of approximately two-thirds of the tracts along the route of the proposed pipeline.

October 21, 2015 | Kristine A. Tidgren

Another development arose this week in the Des Moines Water Works lawsuit. The Board of Water Works Trustees (DMWW) filed its (very long) resistance to the drainage districts’ motion for partial summary judgment, which the districts had filed on September 24.

October 9, 2015 | Kristine A. Tidgren

The United States Court of Appeals for the Sixth Circuit has now stayed the Clean Water Rule nationwide. This temporary ruling brings uniformity to the patchwork of enforcement that has existed since the Rule’s August 28 effective date.

A federal judge from the United States District Court for the District of Columbia recently granted summary judgment to the EPA in a lawsuit challenging the agency’s decision to withdraw a proposed rule impacting confined animal feeding operations (CAFOs).

The drainage districts being sued by the Board of Water Works Trustees (DMWW) have filed their first dispositive motion. On September 24, the districts filed a motion asking the court to enter summary judgment in favor of the drainage districts on the common law claims alleged by DMWW.

September 29, 2015 | Kristine A. Tidgren

The new Clean Water Rule (often called the “waters of the United States” or WOTUS rule) went into effect August 28, 2015. Well, partially that is. The much-publicized Rule that establishes the formal definition of waters subject to regulation under the Clean Water Act went into effect in 37 states on August 28. Landowners in the other 13 states—which include North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming—are still subject to the old definition of jurisdictional waters.

August 28, 2015 | Kristine A. Tidgren

On the eve of the official effective date of the new Clean Water Rule (Fed. Reg. 37,054-127,), a North Dakota federal judge has issued a preliminary injunction to stop the EPA and the U.S. Army Corps of Engineers from enforcing it. The court stated:

August 27, 2015 | Kristine A. Tidgren

As we’ve discussed in prior articles, the Clean Water Rule defines “waters of the United States” or those waters subject to the jurisdiction of the Clean Water Act. For land subject to CWA jurisdiction, section 402 authorizes the EPA to issue permits for storm water runoff, and section 404 authorizes the Corps to issue permits for the discharge of fill material. This definition includes a number of exclusions. 

It’s been a wet summer in many places around the country. But much of the attention on water has not stemmed from the heavy rains. Rather, the focus this summer continues to be on water quality. 

July 2, 2015 | Kristine A. Tidgren

They wasted no time. The day the new Clean Water Rule was officially published, June 29, 2015, the lawsuits began. As of today, 27 states have joined lawsuits challenging the validity of the new Rule unveiled May 27 by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

May 27, 2015 | Kristine A. Tidgren

The EPA and Army Corps unveiled their long-awaited final Clean Water Rule on May 27, 2015. The proposed rule had been pending for more than a year. 

The Resource Conservation and Recovery Act (RCRA) of 1976 subjects hazardous material to federal regulation if it is solid waste.

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