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


ANNOUNCEMENT: REGISTER NOW for the Fifth Annual Mid-South Agricultural and Environmental Law Conference and you’ll be eligible for two “bonus” hours of online CLE! Details here.


JUDICIAL: Includes agritourism, CWA, and international trade issues.

Kent JEFFRIES, Petitioner, and Lynwood Hare, Frances L. Hare, Bobbie Lewis Jeffries, and Thomas Glenn Finch, Intervening Petitioners, v. COUNTY OF HARNETT, Respondent, and Drake Landing, LLC, William Dan Andrews, and Linda Andrews, Intervening Respondents, No. COA17-729, 2018 WL 2206370 (N.C. Ct. App. May 15, 2018) involved agritourism issues as plaintiff appealed decision by county board declaring his land non-exempt form countywide zoning permits. Plaintiff operated “shooting activities” on his farm property and issue was whether commercial shooting activities “involving continental shooting towers, 3D archery courses and ranges, sporting clay, skeet and trap ranges, rifle ranges and pistol pits constitutes agritourism.” Court considered relevant statutes and concluded “shooting activities that require the construction and use of artificial structures and the alteration of natural land, such as clearing farm property to operate gun ranges, share little resemblance to . . . rural agritourism activity.” Court found plaintiff’s operations were not agritourism and therefore, subject to county zoning.

In FOOD & WATER WATCH, ET AL. v. MARYLAND DEPARTMENT OF THE ENVIRONMENT, No. 2602, Sept. Term, 2016, 2018 WL 2203175 (Md. Ct. Spec. App. May 14, 2018), plaintiff sued alleging that a Concentrated Animal Feeding Operations (CAFOs) permit issued by the Maryland Department of the Environment (MDE) “neither provided for chemical, biological, and physical monitoring at any outfall or in-stream locations, nor required effluent monitoring,” per the Clean Water Act (CWA). Lower court rejected plaintiff’s arguments and on appeal, issue was whether MDE’s issuance of the General Discharge Permit “was consistent with all applicable state and federal laws and regulations.” Court acknowledged CAFOs “are a significant contributor of environmental and water pollution,” but found that Maryland law “contemplates that a State’s effluent guidelines must produce representative data of zero pollutant discharge,” and that such a “standard is met here.” Court also noted that the EPA “has afforded agencies . . . the flexibility in developing effluent limitations.” Affirmed for defendant.

In OAKLAND BULK & OVERSIZED TERMINAL, LLC, Plaintiff, v. CITY OF OAKLAND, Defendant, No. 16-cv-07014-VC, 2018 WL 2210680 (N.D. Cal. May 15, 2018), City entered into an agreement with developer to build a bulk cargo shipping terminal. After the development agreement was signed, City Council then adopted a resolution banning “coal operations at the terminal would pose a substantial danger to the health and safety of people in Oakland.” Developer sued claiming City breached the contract and “lacked substantial evidence to conclude that the proposed coal operations at the terminal would pose a substantial health or safety danger to people in Oakland.” Issue was whether City Council had evidence that the proposed coal operations would pose a substantial health or safety danger” when it passed the resolution. Court found City’s evidence was  “riddled with inaccuracies, major evidentiary gaps, erroneous assumptions, and faulty analyses, to the point that no reliable conclusion about health or safety dangers could be drawn from it.” Court ruled ordinance invalid.


LEGISLATIVE:

H.R. 3053: Nuclear Waste Policy Amendments Act of 2018. Text for status Referred to Senate Committee (May 14, 2018) is now available.

H.R. 4069: To amend the Migratory Bird Treaty Act to clarify the treatment of authentic Alaska Native articles of handicraft containing nonedible migratory bird parts. Text for status Reported by House Committee (May 15, 2018) is now available.

S. 2839: A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to improve assistance for socially disadvantaged farmers and ranchers and veteran farmers and ranchers. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 5821: To establish a process for the termination of certain programs of the Department of Defense. Referred to the House Committee on Appropriations, House Committee on Armed Services.

H.R. 5824: To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to improve assistance for socially disadvantaged farmers and ranchers and veteran farmers and ranchers. Referred to the House Committee on Agriculture.

H.Res. 892: Expressing support for SummerSet DC in the Nation’s capital to benefit the District of Columbia and regional residents as well as visitors and to honor the public service of the performers and partners. Referred to the House Committee on Natural Resources.

H.Res. 893: Recognizing the memorials and monuments to the Katyn Massacre are important historical reminders of the heinous acts that took the lives of approximately 22,000 innocent Polish prisoners of war at the order of Joseph Stalin. Referred to the House Committee on Natural Resources.

H.R. 5825: To expand crop insurance available to beginning farmers and ranchers. Referred to the House Committee on Agriculture.

H.R. 5787: To amend the Coastal Barrier Resources Act to give effect to more accurate maps of units of the John H. Chafee Coastal Barrier Resources System that were produced by digital mapping of such units. Referred to the House Committee on Natural Resources.


REGULATORY: Includes AMS, APHIS, EPA, FWS, ITA, NOAA, and RBCS rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule amends the general regulations for Federal fruit, vegetable, and specialty crop marketing agreements and marketing orders and allows such programs to conduct meetings and vote using electronic means of communication. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule APHIS is amending the Virus-Serum-Toxin Act regulations concerning records and reports. Details here.

Notice APHIS has prepared a draft environmental impact statement (EIS) and preliminary pest risk assessment that evaluate the potential environmental impacts and plant pest risk associated with the proposed environmental release of genetically engineered Citrus tristeza virus. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revision to the Oregon regional haze State Implementation Plan (SIP) submitted by the state on July 18, 2017. Info here.

Rule the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. Info here.

Rule establishes tolerances for residues of pyroxasulfone and its metabolites in or on vegetable, tuberous and corm, subgroup 1C; vegetable, bulb, group 3-07; and potatoes, granules/ flakes. K-I Chemical USA, Inc. requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

Rule EPA is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District portion of the California State Implementation Plan. Details here.

Rule EPA is proposing to approve elements of a state implementation plan (SIP) submission from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) relating to Prevention of Significant Deterioration (PSD) for the 1997 ozone. Details here.

Rule the Comprehensive Environmental Response, Compensation, and Liability Act requires that the National Oil and Hazardous Substances Pollution Contingency Plan include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications to conduct certain activities with foreign endangered species. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA is conducting a new shipper review of Qingdao Doo Won Foods Co., Ltd. regarding the antidumping duty order on fresh garlic from China. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes to implement management measures described in Amendment 43 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council. Info here.

Notice NOAA seeks comment on proposed and/or continuing information collections. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice RBCS will request a revision for a currently approved information collection in support of the program for 7 CFR, part 1951, subpart R, “Rural Development Loan Servicing.” Info here.