A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
JUDICIARY: Includes CWA
In Ctr. for Biological Diversity v. U.S. Army Corps of Eng’rs, No. 18-10541, 2019 WL 5690619 (11th Cir. Nov. 4, 2019), the Eleventh Circuit addressed whether the U.S. Army Corps of Engineers (Corps) had to consider the environmental effects of producing and storing phosphogypsum when granting a § 404 Clean Water Act (CWA) dredge and fill permit to a fertilizer manufacturer engaged in phosphate mining. Phosphogypsum is a radioactive byproduct of the process of manufacturing fertilizer from mined phosphate ore, and is considered an indirect environmental effect of the Corps granting a § 404 permit to Mosaic, a fertilizer manufacturer. Additionally, Mosaic’s production and storage of phosphogypsum occurs distantly in both time and place from the wetland discharges that accompany Mosaic’s phosphate mining, and is already regulated by other state and federal agencies. Because of this, the Corps concluded that Mosaic’s production and storage of phosphogypsum was outside of the environmental review that accompanied issuing Mosaic a § 404 permit. This conclusion led to the plaintiffs filing suit, alleging that the Corps’ decision not to consider the environmental effects of phosphogypsum was arbitrary and capricious. Ultimately, the Eleventh Circuit disagreed, concluding that the to require the Corps to consider the effects of Mosaic’s production and storage of phosphogypsum “would expand consideration of the effects of dredging certain wetlands to require study of the environmental effects of far-flung activity like the use of fertilization in commercial farming.” The court was persuaded by the fact that the phosphogypsum-related effects were a byproduct of fertilizer production, not dredging and filling, and by the fact that agencies besides the Corps directly regulate fertilizer plants and phosphogypsum.
REGULATORY: Includes FWS, FSIS, NOAA
FISH AND WILDLIFE SERVICE
Final rule removing the Colorado butterfly plant from the Federal List of Endangered and Threatened Plants due to recovery. Info here.
FOOD SAFETY AND INSPECTION SERVICE
Final Rule amending the Siluriformes fish inspection regulations to list the People’s Republic of China as a country eligible to export Siluriformes fish and fish products to the United States. Info here.
Final Rule amending the Siluriformes fish inspection regulations to list Thailand as a country eligible to export Siluriformes fish and fish products to the United States. Info here.
Final Rule amending the Siluriformes fish inspection regulations to list the Socialist Republic of Vietnam as a country eligible to export Siluriformes fish and fish products to the United States. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Temporary Rule reallocating the projected unused amounts of Pacific cod total allowable catch (TAC) from catcher vessels using trawl gear to catcher vessels using hook-and-line gear, catcher/processors using trawl gear, vessels using jog gear, and vessels using pot gear in the Western Regulatory Area of the Gulf of Alaska. Info here.
Notification of Quota Transfer transferring a portion of North Carolina’s 2019 commercial summer flounder quota to the State of Rhode Island and the Commonwealth of Virginia. Info here.