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

ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Tuesday, January 16th: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.


KENTUCKY WATERWAYS ALLIANCE, et al., Plaintiffs, v. KENTUCKY UTILITIES CO., Defendant, No. 5: 17-292-DCR, 2017 WL 6628917 (E.D. Ky. December 28, 2017) involved a citizen enforcement action alleging defendant’s handling and disposal of coal combustion residuals “presents an imminent and substantial endangerment to human health and the environment in violation of the Resource Conservation and Recovery Act (RCRA).” Plaintiffs also claimed defendant’s actions “led to the unpermitted discharge of pollutants into navigable waters in violation of the Clean Water Act (CWA). Defendant moved to dismiss and argued plaintiffs did not have standing to bring an RCRA claim and that their actions were ot subject to permit requirements. Court found that “the discharge of pollutants to a navigable water via hydrologically connected groundwater is not subject to the CWA’s NPDES permit requirement.” Motion to dismiss granted.

REGULATORY: Includes AMS, USDA, EPA, FCIC, FWS, FDA, FS, and NOAA rules and notices.


Rule implements a recommendation from the Hazelnut Marketing Board (Board) to increase the assessment rate established for the 2017-2018 and subsequent marketing years from $0.005 to $0.006 per pound of hazelnuts handled under the Marketing Order. Info here.

Notice AMS is announcing the designations of Kankakee Grain Inspection, Inc.; State Grain Inspection, Inc.; Alabama Department of Agriculture and Industries; and the Washington Department of Agriculture to provide official services under the United States Grain Standards Act. Details here.

AGRICULTURE DEPARTMENT: Notice announces the intention of the Office of the Assistant Secretary for Civil Rights (OASCR) to request a renewal of a currently approved information collection. OASCR will use the information collected to collect the race, ethnicity, and gender (REG) of all program applicants and participants by county and State. Info here.


Rule EPA is taking final action to approve a revision to the California State Implementation Plan (SIP). Details here.

Rule EPA is proposing to approve a revision to the Northern Sierra Air Quality Management District (NSAQMD) portion of the California State Implementation Plan (SIP). Info here.

Rule EPA is proposing to approve two state implementation plan (SIP) revisions formally submitted by the Commonwealth of Virginia. Info here.

Rule EPA is providing an opportunity to comment on an analysis of the lifecycle greenhouse gas (GHG) emissions associated with certain biofuels that are produced from grain sorghum oil extracted at dry mill ethanol plants at any point downstream from sorghum grinding, also known as distiller sorghum oil. Details here.

Rule EPA proposes to establish federal nutrient criteria to protect designated uses for the State of Missouri’s lakes and reservoirs. Info here.


Rule FCIC amends the Common Crop Insurance Regulations to provide California Avocado insurance. Info here.

Rule FCIC amends the Common Crop Insurance Regulations to provide Cultivated Clam insurance. Details here.


Rule FWS determines endangered species status under the Endangered Species Act of 1973 (Act), as amended for the Black Warrior waterdog and designate critical habitat. Info here.

Rule FWS announces a 12-month finding on a petition to list the Panama City crayfish, a semi-terrestrial crayfish species native to Bay County, Florida, as a threatened species under the Endangered Species Act (Act). Details here.

Rule FWS announces 12-month findings on petitions to list a species as an endangered or threatened species and remove a species from the Federal Lists of Endangered and Threatened Wildlife and Plants under the Endangered Species Act. Details here.

Notice seeks comment on the following applications for a permit to conduct activities intended to enhance the propagation or survival of endangered or threatened species. Right of Way Permit for Ethane Pipeline and Approved Compatibility Determination; San Bernard National Wildlife Refuge. Info here.

Notice FWS received an application for a 30-year right-of-way (ROW) permit under the Migratory Bird Conservation Act from Lavaca Pipeline Company. Details here.

Notice Department of the Interior (DOI) is establishing and seeking nominations for the Hunting and Shooting Sports Conservation Council. Info here.


Rule FDA is amending the regulations for new animal drugs for investigational use to expand the scope of clinical investigator disqualification to include ineligibility to conduct nonclinical laboratory studies. Info here.

Rule FDA is reopening the comment period for the notice of petition that appeared in the Federal Register of September 21, 2017, proposing that the food additive regulations be amended to provide for the safe use of glyceryl polyethylene glycol (15) ricinoleate as an emulsifier in animal food that does not include food for cats, dogs, vitamin premixes, or aquaculture. Info here.


Notice the Santa Fe National Forest, prepared a forest plan amendment to allow geothermal leasing to accompany its Final Environmental Impact Statement (FEIS) and a Draft Record of Decision (ROD) for Geothermal Leasing. Info here.

Notice the Kootenai National Forest (KNF) will prepare a Supplemental Environmental Impact Statement (SEIS) on a proposed federal action, which is approval of a Plan of Operations for the Evaluation Phase of the Montanore Project. Details here.


Rule NMFS modifies the Atlantic highly migratory species (HMS) regulations to require vessels in the pelagic longline fishery to account for bycatch of bluefin tuna (bluefin) using Individual Bluefin Quota (IBQ) on a quarterly basis instead of on a trip-level basis. Info here.

Rule NMFS announces the approval of Amendment 44 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) as submitted by the Gulf of Mexico (Gulf) Fishery Management Council. Details here.

Rule NMFS issues regulations to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Info here.

Rule NMFS is reallocating the projected unused amount of Pacific cod from catcher vessels equal to or greater than 60 feet (18.3 meters) length overall (LOA) using pot gear. Details here.

Rule NMFS proposes to implement management measures described in Amendment 47 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Info here.

Rule NMFS proposes regulations to modify specific provisions of the North Pacific Observer Program. Info here.

Rule NMFS has received a request from the United States Air Force (USAF), 96th Civil Engineer Group/Environmental Planning Office (96 CEG/CEIEA) at Eglin Air Force Base for authorization to take marine mammals. Info here.

Notice provides participants in the Pacific coast groundfish trawl rationalization program with the 2018 fee percentages and “MS pricing” needed to calculate the required payments for trawl rationalization program cost recovery fees due in 2018. Details here.

Notice that Eye of the Whale (Olga von Ziegesar, Responsible Party and Principal Investigator), P.O. Box 15191, Fritz Creek, AK 99603, has applied in due form for a permit to conduct research on humpback whales. Details here.