Category Archives: Clean Water Act

2018 Ag Law Year in Review

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Well, it’s been quite a year for agricultural law!  Looking back, it has been interesting to see the variety of legal issues that have come up in the last 365 days.  From a major class action settlement by Syngenta to new electronic logging device rules to nuisance litigation in North Carolina, there are numerous issues of which agricultural producers should be aware. If you want to hear more about these topics, Paul Goeringer and I did a Year in Review joint podcast.  You can listen here.  {Since we… Read More →

Clean Water Act Application to Groundwater: Keeping Score

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A major issue with regard to the scope of the Clean Water Act is popping up in courtrooms across the United States.  Are point source discharges into groundwater, that eventually reach a “water of the United States”, within the scope of the Clean Water Act’s jurisdiction?  This issue is growing and has been decided differently by courts across the country.  The legal question is teed up and could potentially reach the United States Supreme Court next year.  Let’s take a look at this issue and the results from… Read More →

August 31, 2018 Weekly Round Up

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Welcome to the end of August!  I’m not sure how the summer has already flown by, but here we are.  This week I was in Stephenville in Tuesday for an agricultural leasing and law program.  We had a great turnout, so welcome to those of you joining from that event. Here are some of the ag law stories in the news this week. * Appellate court reverses trial court decision in Lost Pines GCD date.  Earlier this year, a Bastrop County judge held that the Lost Pines GCD… Read More →

Does the Clean Water Act Apply to Groundwater?

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If a person discharges a pollutant from a point source into groundwater, and that pollutant then reaches a “Water of the United States” as defined under the Clean Water Act, is a discharge permit required?  Two recent court cases have reached different results on this issue and now the Environmental Protection Agency is seeking public comment on this question. Background The Clean Water Act Section 402 requires a National Pollutant Discharge Elimination System (NPDES) permit for the discharge of “pollutants” from “point sources” into “navigable waters.”  Each of… Read More →

September 15, 2017 Weekly Round Up

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It has been a bit of a crazy week around here and I apologize to anyone who has called or emailed and not gotten a quick response from me.  On Monday, my two year old landed in the hospital after fighting a nasty stomach virus for two weeks.  He is home and doing much better now, but as you can imagine, work got put on the back burner.  I am back in the saddle now and here are some of the ag law stories in the news this week. *Number… Read More →

Duarte v. Corps of Engineers: California Wheat Farmer Settles Clean Water Act Lawsuit

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This week, it was announced that the parties have reached a settlement agreement in the Duarte Nursery v. Army Corps of Engineers.  This case has been a high-profile concern for landowners and agricultural producers across the United States. Background In 2012, Duarte Nursery purchased 450 acres land in Tehama County, California with the intent to farm the land, initially by sowing winter wheat.  The property, north of Sacramento, consists of rolling grassland.  Prior to 1988, the land had been farmed, but from 1988 until the Duarte purchased in 2012, the land… Read More →

Iowa Supreme Court Issues Ruling in Des Moines Water Works Case

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Last week, the Iowa Supreme Court issued a decision in a case concerning drainage from farmland upstream that allegedly increased nitrates in the Raccoon River beyond the acceptable drinking water level, causing the water supplier to incur costs of treatment.  In answering four state law questions certified to it, the Iowa Supreme Court sided with the drainage districts.  [Read full opinion here.] Background The Board of Water Works Trustees for the City of Des Moines Iowa (aka Des Moines Water Works and “DMWW”) is a municipal waterworks that… Read More →

Clean Water Act Webinar and Report

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Today, I’ve got a couple of resources for those of you interested in the Clean Water Act. First, the Congressional Research Service recently published a report titled “Evolution of the Meaning of ‘Waters of the United States’ in the Clean Water Act” that walks through the path that the term “waters of the US” has taken over the past several decades.  It is an interesting look at the history of the Act and the cases that have attempted to define the scope of federal jurisdiction in this area…. Read More →

Trial Court Ruling in Duarte Nursery v. Army Corps of Engineers Concerning for Landowners

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Today’s blog is long….I’m warning you now. In the last few years, we have seen an increased focus on the regulatory reach of federal jurisdiction over agricultural lands, with the new WOTUS rule and other court decisions.  A recent trial court decision from the Eastern District of California should be extremely concerning to landowners across the country.  At issue, the federal Clean Water Act and agricultural operations. Background In 2012, Duarte Nursery purchased 450 acres land in Tehama County, California with the intent to farm the land, initially by sowing… Read More →

The Clean Water Act and Agriculture: The Basics

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The “waters of the United States” controversy has been a hot button issue in the agriculture industry for over a year now.  It’s showing no signs of slowing down.  But many people fail to understand that there is more to this issue than the definition of “waters of the United States.”  For example, even if a stream running across one’s property is deemed a “water of the United States” under the EPA’s new rule, that does not mean the landowner must obtain a permit in order to conduct… Read More →