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


ANNOUNCEMENT: Mark your calendar for next week’s Agricultural & Food Law Consortium webinar, Wednesday, May 2:  Water Wars in the United States Supreme Court: Why Should Agriculture Care? Details available here.


JUDICIAL: includes EPA, renewable energy, and urb & ag issues.

In CITY OF KENNETT, MISSOURI, Plaintiff-Appellant, v. ENVIRONMENTAL PROTECTION AGENCY; Karl Brooks, in his official capacity as Regional Administrator of EPA Region 7, Defendants-Appellees, No. 17-1713, 887 F.3d 424 (8th Cir. April 9, 2018), City challenged Environmental Protection Agency’s (EPA) approval of total maximum daily load (TMDL) of pollutants for a stream wherein the city’s wastewater treatment plant was a “point source of pollutants.” Lower court granted summary judgment to the EPA and City appealed. City argued the TMDL was “insufficient to achieve EPA’s goal for dissolved oxygen concentration in stream due to non-point source pollutants.” Appellate court found that City established “injury in fact required for standing, and that EPA’s “approval of TMDL was ripe for judicial review.” Remanded.

In CONCERNED CITIZENS and Property Owners; Illinois Agricultural Association, a/k/a Illinois Farm Bureau; Mary Ellen Zotos; and Landowners Alliance of Central Illinois, NFP, Petitioners, v. The ILLINOIS COMMERCE COMMISSION; Grain Belt Express Clean Line LLC; Brown Branch LLC; JAR Branch LLC; Infinity Wind Power; Citizens Utility Board; Illinois Central Railroad Company; Rockies Express Pipeline LLC; Rex Encore Farms LLC; Rex Encore Properties LLC; Wind on the Wires; Environmental Law and Policy Center; BNSF Railway Company; Local Unions 51 and 702 International Brotherhood of Electrical Workers, AFL–CIO; and Building Owners and Managers Association of Chicago, Respondents, NO. 5–15–0551, 2018 IL App (5th) 150551 (Ill. Ct. App.  April 17, 2018), Commerce Commission granted a certificate of “public convenience and necessity” to a wind farm company that intended to run a transmission line throughout Kansas and Missouri. Plaintiffs maintained the certificate should not have been granted because the company was “not a public utility at the time of the application, a necessary prerequisite under the [Public Utilities] Act.” Court observed that to qualify as a public utility a company “must also own, control, operate, or manage, within [Illinois] . . . a plant, equipment, or property used or to be used for . . . the production, transmission, sale, etc. of one of the specified commodities or services.” Evidence showed that at the time the wind farm company submitted its application, it did not own any property in Illinois that would have been used in implementing the transmission line. Court reversed Commission’s certificate as company was not a public utility.

In the MATTER OF the CITY OF NEW YORK Relative to Acquiring Title in Fee Simple absolute in certain Real Property, where not heretofore acquired, FOR SOUTH RICHMOND BLUEBELT, PHASE 3 located in the Bluebelt areas known as Jack’s Pond and Wolfe’s Pond, in Community District 3, South Richmond, Borough of Staten Island, County of Richmond, City and State of New York. 594 Associates, Inc. (Block 6550 Lot 71, Damage Parcel 2), Claimant, v. The City of New York, Condemnor, (CY) 4024/10, 2018 WL 1940120 (N.Y. April 18, 2018) involved a takings dispute regarding wetland regulations impacting two parcels of land. Issue was whether the property at issue “should be considered together with an adjoining parcel to determine whether the wetland regulations constitute a taking.” City argued the parcels should be considered one because they were owned by a single corporation. Plaintiff argued that “despite the common shareholders, the two corporations are independent legal entities that purchased separate parcels.” Considering whether the land at issue constituted one lot or two, the court reasoned that because “Claimant agreed to restrict development of its land to allow another corporation to obtain a permit to develop its adjacent lots demonstrates the both corporations were using the two parcels as one economic unit.” Court concluded plaintiff “could not reasonably expect that the two parcels would not be considered as one parcel.”


LEGISLATIVE:

S.J. Res. 60: A joint resolution providing for the reappointment of Barbara M. Barrett as a citizen regent of the Board of Regents of the Smithsonian Institution. Text is now available.

S. 2747: A bill to provide for the study and evaluation of net metering. Referred to the Senate Committee on Energy and Natural Resources.

S. 2749: A bill to provide for the reform and continuation of agricultural commodity programs of the Department of Agriculture through fiscal year 2023. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 5613: To designate the Quindaro Townsite in Kansas City, Kansas, as a National Historic Landmark. Referred to the House Committee on Natural Resources.

H.R. 5609: To establish a trust fund to provide for adequate funding for water and sewer infrastructure. Referred to the House Committee on Agriculture, House Committee on Energy and Commerce.


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

AGRICULTURAL MARKETING SERVICE:

Rule invites comments on a recommendation to establish a grower allotment percentage for the 2018-19 crop year under the marketing order for cranberries grown in the production area (Order). Info here.

Rule invites comments on a proposed amendment to Marketing Order No. 929, which regulates the handling of cranberries grown in the States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wisconsin, Michigan, Minnesota, Oregon, Washington, and Long Island in the State of New York. Details here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Importation of Eggplant from Israel. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving revisions to the Texas State Implementation Plan (SIP) submitted by the State of Texas to EPA on August 23, 2017, that pertain to particulate matter standards and outdoor burning regulations. Details here.

Rule that the Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency (EPA) to authorize States to operate their hazardous waste management programs in lieu of the Federal program. Details here.

Rule the EPA is proposing to fully approve the State Implementation Plan (SIP) revision submitted by the State of Montana on October 14, 2016. Info here.

Rule the is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of South Dakota on October 4, 2017, related to South Dakota’s Air Pollution Control Program. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS is removing the textual descriptions of critical habitat boundaries from those designations for mammals, birds, amphibians, fishes, clams, snails, arachnids, crustaceans, and insects for which the maps have been determined to be sufficient to stand as the official delineation of critical habitat. Info here.

Notice FWS invite the public to comment on federally-listed American burying-beetle incidental take permit (ITP) applications. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the availability of guidance for industry #210 entitled “The Index of Legally Marketed Unapproved New Animal Drugs for Minor Species.” Details here.

NATIONAL OCEANIC AND ATMOSPHIERC ADMINISTRATION:

Notice NMFS has received a request from the Scripps Institution of Oceanography (SIO) for authorization to take marine mammals incidental to a low-energy marine geophysical survey in the Northwest Atlantic Ocean. Info here.

Notice NMFS has received a request from the San Francisco Bay Area Water Emergency Transportation Authority (WETA) for authorization to take marine mammals incidental to Downtown San Francisco Ferry Terminal Expansion Project. Details here.

Notice Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Alaska Chinook Salmon Economic Data Report. Details here.

Notice Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Alaska Commercial Operator’s Annual Report (COAR). Info here.

Notice Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: STORMREADY® TSUMANIREADY®, TSUNAMIREADY® SUPPORTER, AND STORMREADY® SUPPORTER APPLICATION FORMS. Info here.

Notice contains corrections to the scoping meeting times published on April 2, 2018, in the DATES section of a notice of intent for the Marine Mammal Health and Stranding Response Program to prepare a PEIS. Details here.