A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
JUDICIAL: Includes environmental law, ESA
In San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist., 49 F.4th 1242 (9th Cir. 2022), the court considered whether the law directing the Bureau of Reclamation to operate the Twitchell Dam in California precluded Reclamation from managing the Dam for the purpose of preventing take of endangered Steelhead salmon. The court found that the law authorizing the Twitchell Dam could be carried out in harmony with the Endangered Species Act. Under the ESA all persons, including federal agencies, are prohibited from cause the “take” of a listed species. “Take” is broadly defined and includes actions that injure or kill listed species as a result of “impairing essential behavior patterns.” The plaintiffs argued that the way the defendant was operating Twitchell Dam resulted in the take of endangered Steelhead salmon because it disrupted essential behavior patterns of the salmon by preventing them from reaching the Pacific Ocean. The defendant argued that their actions did not amount to a taking under the ESA because the law authorizing Twitchell Dam did not grant the defendant discretion to operate the Dam for the purpose of avoiding take of listed species. The court disagreed. Under the law authorizing Twitchell Dam, the defendant is charged to operate the Dam for “the conservation of water, flood control, and for other purposes[.]” According to the court, the “other purposes” language is broad enough to allow the defendant to manage Twitchell Dam to avoid the take of listed species. Because the law authorizing Twitchell Dam and the ESA can be read in harmony with one another, the court concluded that the defendant had the authority to manage the Dam to avoid the take of Steelhead salmon.
REGULATORY: Includes EPA, FDA, FSIS
ENVIRONMENTAL PROTECTION AGENCY
Notice announcing that the EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act. Info here.
FOOD AND DRUG ADMINISTRATION
Notice announcing the availability of a final guidance for industry entitled “Refusal of Inspection by a Foreign Food Establishment or Foreign Government.” Info here.
FOOD SAFETY AND INSPECTION SERVICE
Notice announcing that the National Advisory Committee on Microbiological Criteria for Foods will hold a public meeting of the full Committee on November 15, 2022. Info here.