A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


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JUDICIAL: Includes environmental, CWA, and food labeling issues.

In COLORADO PRAIRIE INITIATIVE, a Colorado nonprofit corporation, Petitioner, v. MARTY LOWNEY, in his official capacity as the Colorado State Director for USA-APHIS Wildlife Services, JASON SUCKOW, in his official capacity as the Western Regional Director for USA- APHIS Wildlife Service, and ANIMAL AND PLANT HEALTH INSPECTION SERVICE – WILDLIFE SERVICES, a federal agency of the United States Department of Agriculture, Respondents, No. 17-cv-00321-CMA, 2018 WL 1566831 (D. Colo. March 30, 2018), plaintiffs, advocates for the conservation of “prairie ecosystems,” challenged APHIS’s prairie dog removal and control operations in Colorado, alleging the agency violated the National Environmental Policy Act (NEPA). APHIS argued its activities “were categorically excluded from the procedural requirements in NEPA.” Court observed APHIS’s own regulation holds “that the Agency can categorically exclude those actions which are ‘routine measures,’ such as routine wildlife ‘removals’ and ‘control.’” Court found APHIS complied with NEPA regulations and affirmed the agency’s action.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants, No. 16–1861 (JDB), 2018 WL 1568882 (D.D.C. March 30, 2018) involved a polluted river wherein Maryland and the District of Columbia were required, per Clean Water Act (CWA), to develop a plan to return it to “acceptable pollution levels.” Here, the two jurisdictions “set a minimum amount of trash that would have to be removed from the river for those standards to be satisfied,” instead of setting a maximum amount of trash that could enter the river before it failed to meet its water quality standards. Plaintiff challenged Environmental Protection Agency’s (EPA) approval of the plan, contending its “removal-based approach” violated the CWA. Court found for plaintiff and ordered EPA’s approval of the plan be vacated, but allowed for time to develop a new plan.

In SHANA BECERRA, Plaintiff, v. DR PEPPER/SEVEN UP, INC., Defendant, No. 17-cv-05921-WHO, 2018 WL 1569697 (N.D. Cal. March 30, 2018), plaintiff filed class action for damages and an injunction to stop defendant from marketing its Diet Dr Pepper product as “diet.” Plaintiff believed the product would assist in weight loss “due to the use of the term ‘diet’ in the name of the product and on its label.” Court noted that studies suggest “artificial sweeteners, including those used in Diet Dr Pepper, may . . . cause weight gain.”vDefendant moved to dismiss, arguing “it is not plausible that a reasonable consumer would believe that drinking Diet Dr Pepper would assist in weight loss, beyond the fact that it has no calories.” Defendant’s motion to dismiss granted.


LEGISLATIVE:

H.R. 4465: Endangered Fish Recovery Programs Extension Act of 2017. H.R. 4465 extends through 2023, the specific authority of the Bureau of Reclamation (BOR) to collect and spend certain proceeds from the sale of electricity generated by hydropower plants owned by BOR for endangered fish recovery programs in the Upper Colorado River and San Juan River Basins.


REGULATORY:

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation to establish free and restricted percentages for the 2017-18 crop year under the marketing order for cranberries grown in the production area (Order). Info here.

Rule implements a recommendation from the Florida Tomato Committee (Committee) for a decrease of the assessment rate established for the 2017-18 and subsequent fiscal periods for tomatoes grown in Florida, handled under the Marketing Order. Details here.

Rule announces the renewal of 17 substances on the National List of Allowed and Prohibited Substances (National List) within the U.S. Department of Agriculture’s (USDA) organic regulations. Info here.

Rule implements a recommendation from the Citrus Administrative Committee (Committee) to relax the minimum size requirements currently prescribed under the Marketing Order for oranges, grapefruit, tangerines, and pummelos grown in Florida (Order). Info here.

Rule would implement a recommendation from the California Olive Committee (Committee) to decrease the assessment rate established for the 2018 fiscal year and subsequent fiscal years. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving the Limited Maintenance Plan (LMP), submitted by the State of Wyoming to the EPA on June 2, 2017, for the Sheridan moderate PM<INF>10</INF> nonattainment area and concurrently redesignating the Sheridan NAA to attainment of the National Ambient Air Quality Standard for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers. Details here.

Rule EPA is proposing to approve revisions to the Northern Sonoma County Air Pollution Control District portion of the California State Implementation Plan (SIP). Info here.

Rule EPA is proposing to approve a revision to the Commonwealth of Virginia’s state implementation plan (SIP). Info here.

FISH AND WILDLIFE SERVICE: Notice FWS is proposing to renew an information collection with revisions. Title: Administrative Procedures for U.S. Fish and Wildlife Service Financial Assistance Programs. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes to implement management measures described in the For-hire Reporting Amendment, as prepared and submitted by the South Atlantic Fishery Management Council and Gulf of Mexico (Gulf) Fishery Management Council. Info here.

Notice NMFS has received a request from the U.S. Navy (Navy) for an incidental harassment authorization (IHA) that would cover a subset of the take authorized in an IHA previously issued to the Navy to incidentally take bottlenose dolphins, by Level B harassment only, during construction activities associated with a wharf recapitalization project at Bravo Wharf, Naval Station Mayport, Florida. Info here.

Notice NMFS has received a request from Garden State Offshore Energy, LLC (GSOE), for authorization to take marine mammals incidental to marine site characterization surveys off the coast of Delaware as part of the Skipjack Wind Project in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0482) and along potential submarine cable routes to a landfall location in Maryland or Delaware. Details here.