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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

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.

A recent Fifth Circuit opinion established that a federal court has jurisdiction to review the EPA’s denial of a rulemaking petition. It did, however, go on to establish a “highly deferential” standard of review, placing upon the agency only a “slight” burden to justify its decision to decline a necessity determination.

In a blogpost yesterday, EPA Administrator Gina McCarthy and Assistant Secretary of the Army Jo-Ellen Darcy announced that their offices had sent a draft final version of what's been called the Waters of the United States (WOTUS) rule to the Office of Management and Budget on April 3. The controversial rule, which the EPA and the U.S.

April 2, 2015 | Kristine A. Tidgren

On April 1, 2015, the United States Court of Appeals for the Sixth Circuit admonished the USDA for denying farm program benefits to a farmer and forcing him to “navigate a bureaucratic labyrinth,” all the while “demonstrat[ing] a disregard for its own regulations.”

March 16, 2015 | Kristine A. Tidgren

On March 16, 2015, the Des Moines Board of Water Works Trustees (DMWW) followed through on its January threat and filed a federal Clean Water Act (CWA) lawsuit against the supervisors and drainage districts of three Iowa counties. The lawsuit, which was filed in the United States District Court for the Northern District of Iowa, alleges that the supervisors, in their capacity as trustees for the drainage districts, are operating the drainage districts in an “unlawful and antisocial” manner that is contrary to the “public health and welfare.” 

March 16, 2015 | Kristine A. Tidgren

The Des Moines Board of Water Works Trustees has filed its complaint against the Supervisors of Calhoun, Sac, and Buena Vista Counties in their capacities as trustees of Iowa drainage districts.

As threatened in January, the Des Moines Board of Water Works Trustees voted today to proceed with a federal Clean Water Act (CWA) citizen lawsuit against the supervisors of three Iowa Counties.

January 28, 2015 | Roger A. McEowen

Two farm-related organizations, the American Farm Bureau Federation and the National Pork Producers' Council, sued the Environmental Protection Agency (EPA) under the Administrative Procedures Act to bar EPA's release of member information involving physical addresses and details concerning the members' operation of Confined Animal Feeding Operations (CAFOs).  

On January 20, 2015, Dakota Access, LLC, a subsidiary of Dallas-based Energy Transfer Partners, filed a petition with the Iowa Board of Utilities seeking a permit to build a crude oil pipeline across the State of Iowa. 

January 15, 2015 | Kristine A. Tidgren

On January 8, 2015, the Des Moines Board of Water Works Trustees (DMWW) voted unanimously to send a notice of intent to file a Clean Water Act citizen lawsuit against the county supervisors of Sac, Buena Vista, and Calhoun Counties in Iowa. 

2015 brings a new year and a look back at the most significant agricultural law and taxation developments of 2014.  It’s difficult to narrow the developments down to the “Top 10” with so many to choose from.  

In a split opinion, the Iowa Supreme Court upheld water quality (“antidegradation”) regulations developed by the Iowa Environmental Protection Commission (EPC), even though the EPC, at the time the rules were developed, was not constituted in accordance with state law.

In a move of incredible importance to agriculture, the Environmental Protection Agency has taken the blatantly unconstitutional position that it has the power to garnish wages when it fines an individual or other party for what EPA claims is some violated environmental provision over which it has regulatory authority. 

The Iowa Supreme Court has ruled that neither the federal Clean Air Act(CAA), nor its Iowa counterpart, Iowa Code chapter 455B, preempts state common law claims alleging negligence, nuisance, or trespass. In so holding, the Court denied summary judgment to a grain processing company and allowed a lawsuit demanding injunctive and monetary relief filed by eight Muscatine residents to continue.

February 4, 2014 | Roger A. McEowen

On January 31, the U.S. House passed H.R. 2642, the “Agricultural Act of 2014” on a 251-166 vote.

A federal district court for the Eastern District of Washington has kept alive a lawsuit filed by seven environmental groups alleging that the BNSF Railway Company has violated the Clean Water Act (CWA). 

We begin 2014 with our annual look at the most significant agricultural law developments of the previous year. Legal issues continue to be at the forefront of developments that are shaping the present and future of American agriculture, and it is very likely that the involvement of the legal system in agriculture will continue to grow. The following is my list of what I view as the top ten agricultural law developments of 2013 based on their impact (or potential impact) on U.S. agricultural producers and the sector as a whole.

The Wisconsin Court of Appeals has ruled that manure spread by a farmer as fertilizer onto his fields was not a “pollutant” subject to exclusion from coverage under his farm owners’ insurance policy.

December 31, 2013 | Roger McEowen

Well, 2013 expired without tax legislation that would extend expiring provisions and without a Farm Bill. 

In Clawson v. State, No. 108-426, 2013 Kan. App. LEXIS 105(Kan. Ct. App. Dec. 20, 2013), the Kansas Court of Appeals determined that Kansas law does not allow the Chief Engineer of the Kansas Department of Agriculture's Division of Water Resources to reconsider an approval once a water appropriation permit has been issued.

Throughout a five-year period, the Iowa Department of Natural Resources (DNR) issued a salvage yard operator five notices of violations of Iowa Code chapter 455B relating to water quality, solid waste, and hazardous conditions.

A major U.S. energy company has entered into a settlement with the federal government for criminal violations of the Migratory Bird Treaty Act for killing protected species of birds at its wind power station near Casper, Wyoming. 

November 1, 2013 | Roger McEowen

With the number of days that the Congress will be in session the remainder of the year dwindling away, it is looking more likely that there won’t be a new Farm Bill.  The Senate passed its bill last June (S. 954) and the House passed their bill in September (H.R. 2642).

A recent federal court opinion has upheld the exemption for agricultural stormwater discharges from the National Pollutant Discharge Elimination System (NPDES) permit requirement.  The case involved a West Virginia confinement poultry operation where the EPA was claiming a federal permit was necessary for discharges of chicken dander when mixed with rainwater. 

October 1, 2013 | Roger McEowen

House and Senate conferees continue attempts to hammer out a Farm Bill.  The present Farm Bill was extended by the ATRA provisions to September 30, 2013, and has since expired.

September 23, 2013 | Roger McEowen

Two people have been indicted by the federal prosecutors in Indiana for allegedly defrauding people by supposedly providing "government certified top-quality biodiesel."

September 3, 2013 | Roger McEowen

In mid-September the IRS issued Final Regulations designed to give guidance on how to draw the line tax-wise between currently deductible repairs and maintenance expenses that have to be capitalized.

August 1, 2013 | Roger McEowen

At the upcoming Agricultural Law seminar on September 12, 2013 one of the topics to be discussed will involve self-defense issues and liability issues with respect to firearms.  That has become a big issue recently. 

Nebraska State Senator Ernie Chambers has sued God.  The Senator seeks an injunction against God to stop him from making and delivering on terroristic threats, among other claims.  Chambers, a non-practicing attorney, filed the case on behalf of his constituents.  The petition asks the Douglas County Court to waive personal service “by virtue of the fact the Defendant, being Omniscient, shall be deemed to have actual knowledge of this action.”  Chambers claims God has caused “fearsome floods, egregious earthquakes, horrendous hurricanes, terrifying tornadoes” and “continues to make terroris

As times continue to grow tougher in the ethanol industry - proposed projects fail to raise the necessary capital and bankruptcy rate of existing plants rises – the possibility of crooked conduct increases. That was the case recently in North Carolina, an area that had planned on being at the center of the bio-fuels craze on the East Coast, but where those plans have been dashed by failing plants.

October 7, 2008 | Roger McEowen

As we've been saying for sometime now, there is going to be a major shake- out in ethanol production with most of the currently existing plants not producing corn-based ethanol by the end of the next five years.  The inefficiencies of the fuel, the high-cost of the inputs, and concerns over pollution will make things tough for ethanol production - all in spite of massive, government-mandated taxpayer support.  So much for the free-market, politicians love tax subsidies coming into their states and districts - especially when they come largely from people that can't vote for (or against) the

April 14, 2009 | Roger McEowen

An ethanol plant near Oshkosh, Wisconsin, has been sued under the Clean Water Act’s (CWA) citizen suit provision (33 U.S.C.

May 20, 2009 | Roger McEowen

Times continue to be tough for the ethanol industry.  Gasoline demand continues to fall and corn prices remain relatively high.  In April, Aventine Renewable Energy Holdings, an Illinois-based ethanol producer, filed for Chapter 11 (reorganization) bankruptcy, and the largest West Coast ethanol producer, Pacific Ethanol, Inc., filed Chapter 11 on May 18.  Aventine has an annual production capacity of 207 million gallons of ethanol, and operates distilleries in Illinois and Nebraska.

August 9, 2011 | Erin Herbold-Swalwell

Earlier this spring, the Illinois House and Senate passed legislation amending the state’s Wildlife Code by adding a provision to §5/2.30 allowing Illinois residents without back child support obligations to take or possess “fur-bearing mammals” found dead or “unintentionally killed” by a vehicle along a public roadway. The amendment does restrict the carcass retrieval to open hunting season for that particular fur-bearing mammal and the person collecting the animal must possess the appropriate licenses, stamps, and permits to hunt the species of animal at issue.

New Iowa Legislation Impacting Rural Landowners and Agricultural Businesses (Most Provisions Effective Jul. 1, 2011)
New Iowa Legislation Impacting Rural Landowners and AgriculturalBusinesses (Effective July 1, 2010)

The extent of federal jurisdiction over isolated wet areas on private property has been an issue since the mid-1970s. The regulatory agencies (U.S. Army Corps of Engineers and the Environmental Protection Agency) and the federal courts have generally taken an expansive view of the scope of the federal government’s ability to regulate activities that impact these wetlands. That means that a farmer, rancher or other landowner generally can not conduct activities such as land clearing, drainage or customary farming practices without first obtaining a federal permit.

The United States Department of Justice (DOJ) has filed a complaint against Seaboard Foods and PIC USA alleging that the companies have failed to comply with an Environmental Protection Agency order to prevent swine manure from contaminating drinking water.  The companies were ordered to clean up five confinement hog operations on June 26, 2001. The complaint notes that each confined pig generates approximately 6-8 pounds of manure daily per 100 pounds of animal weight.  Each confinement building contains approximately 1,000 pigs.

The federal Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) regulate “wetlands” under the Clean Water Act. The CWA prohibits the “discharge of any pollutant” into regulable waters without a federal permit.