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


ANNOUNCEMENT: Join us this Wednesday, May 17, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “AquAdvantage Salmon and Other Current Issues in GMO Regulation.” Details available here.


JUDICIAL: Includes NEPA, CWA, environmental, and bankruptcy issues.

In INDIAN RIVER COUNTY, et al., Plaintiffs, v. Peter M. ROGOFF, et al., Defendants. Martin County, Florida, et al., Plaintiffs, v. Department of Transportation, et al., Defendants, No. 1:15–cv–00460 (CRC), No. 1:15–cv–00632 (CRC), 2017 WL 1967351 (D.D.C. May 10, 2017), two Florida counties challenged Department of Transportation (DOT) to allocate “$1.75 billion in non-taxable private activity bonds, or ‘PABs,’ to help finance a railroad project along the state’s eastern coastline.” Plaintiffs claim DOT did not follow requirements of the National Environmental Policy Act (NEPA) before allocating the PABs. The railroad project’s sponsor then applied for a new allocation of PABs to finance a portion of the project not impacting the counties, and requested DOT withdraw the challenged allocation. DOT withdrew the allocation and court dismissed the cases as moot.

In John ZDZIEBLOSKI, et al., Plaintiffs, v. TOWN OF EAST GREENBUSH, Defendant, 1:15-CV-0298 (LEK/CFH), 2017 WL 1968672 (N.D.N.Y. May 11, 2017), plaintiffs argued a town’s “improper maintenance of a stormwater detention basin” caused the basin to discharge pollutants into a pond on plaintiffs’ property, causing flooding on both the pond and other parts of the property. Parties agreed that “no streams or tributaries or any such kinds of water courses” naturally flow out of or into the pond and issue was whether the pond constitutes a “water of the United States” under the Clean Water Act (CWA). Court concluded the pond was not covered by the CWA, finding that no evidence suggested “the two occasions on which they pumped water from Sheila’s Pond to the tributary show that the pond “perform[s] critical functions related to the integrity of other waters—functions such as pollutant trapping, flood control, and runoff storage.” Defendant’s motion for summary judgment granted.

OREGON WILD, an Oregon non-profit corporation; CASCADIA WILDLANDS, an Oregon non-profit corporation, Plaintiffs-Appellees, v. BUREAU OF LAND MANAGEMENT, an administrative agency of the United States Department of Interior, Defendant, and SCOTT TIMBER CO.; CARPENTERS INDUSTRIAL COUNCIL, Intervenor-Defendants-Appellants, No. 15-35336, 2017 WL 1960413 (9th Cir. MAY 11, 2017) involved an appeal of summary judgment for plaintiffs after a district court held the Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA). Per the lower court, BLM had authorized a harvest project “without considering a reasonable range of alternatives, creating an Environmental Impact Statement (EIS), or taking a hard look at the project’s potential environmental consequences.” Appeal dismissed for lack of jurisdiction.

In re Carol Fisher Carter, Debtor, No. 17-50262, 2017 WL 1968642 (Bankr. M.D.N.C. May, 2017) involved a bankruptcy proceeding and whether party qualified as a “debtor” under Chapter 12.  Debtor argued she was involved in a “farming operation” because she leased farmland for growing crops and excavated gravel “dredged from expanding an irrigation lake that provides water for their farming activities.” Court found that sale of aggregate or gravel did not constitute a farming operation, “though the Debtor’s bankruptcy schedules, 2016 tax returns, Brief, supporting affidavit, and testimony all treat the sale of aggregate or gravel as part of a farming operation.”


REGULATORY:  Includes EPA, FWS, FDA, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving severable portions of revisions to the Oklahoma New Source Review State Implementation Plan submitted by the State of Oklahoma on February 14, 2002. Details here.

Rule EPA is approving a State Implementation Plan revision submitted by the State of Texas for the 2008 8-hour ozone national ambient air quality standards. Info here.

Rule EPA is approving changes to a State Implementation Plan revision submitted by the State of Georgia on January 25, 2016, for the purpose of removing the requirements for heavy duty diesel engines. Details here.

Rule EPA is taking action to approve a State Implementation Plan revision, submitted by the North Carolina Department of Environmental Quality through the Division of Air Quality, for the purpose of removing the statewide transportation facilities rules. Details here.

Rule EPA is approving portions of a state implementation plan revision submitted by the State of West Virginia. Info here.

Rule EPA extends the effective date of the final rule that appeared in the Federal Register of January 12, 2017, and established final reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale as described in that rule. Info here.

FISH AND WILDLIFE SERVICE: Notice the Nebraska Public Power District has applied for an incidental take permit under the Endangered Species Act for the R-Project transmission line in north-central Nebraska. Info here.

FOOD AND DRUG ADMINISTRATION: Notice announcing the availability of a guidance for industry entitled “Three-Month Extension of Certain Tobacco Product Compliance Deadlines Related to the Final Deeming Rule.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS received an application from Deepwater Wind, LLC, for an Incidental Harassment Authorization to take marine mammals, by harassment, incidental to high-resolution geophysical and geotechnical survey investigations associated with marine site characterization activities off the coast of New York. Details here.

Notice NMFS received a request from Quintillion Subsea Operations, LLC for authorization to take marine mammals incidental to conducting subsea cable-laying and maintenance activities in the Beaufort, Bering, and Chukchi seas. Info here.

Notice the Mid-Atlantic Fishery Management Council’s Mackerel-Squid-Butterfish Advisory Panel will meet via webinar to develop recommendations regarding the Council’s Squid Amendment. Details here.

Notice the New England Fishery Management Council is scheduling a public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone. Info here.

Notice the Council will begin its plenary session at 8 a.m. in Ballroom 1, Centennial Hall Convention Center on Wednesday, June 7, continuing through Tuesday, June 13, 2017. Details here.

Notice that a Letter of Authorization was issued to the Sonoma County Water Agency for the take of marine mammals incidental to Russian River estuary management activities in Sonoma County, California. Info here.