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


Join us TODAY at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

JUDICIAL: Includes finance & credit and water law issues.

Herbert Claude Eley, Plaintiff, v. Perquimans County USDA, et al. Defendants, No. 2:18-CV-00029-D, 2018 WL 3785295 (E.D. N.C. July 18, 2018) involved race, age and sex discrimination allegations against the USDA after plaintiff was denied home and guaranteed loans. Plaintiff sought over $1 million in damages and asserted that USDA “has a history of denying Black and minority loans,” per past class action lawsuits against the USDA. Court found plaintiff’s allegations “did not present any facts about [plaintiff’s] qualification for the loan for which he applied, the rejection of his application, or the Perquimans County USDA’s lending practices regarding applicants outside of [plaintiff’s] protected class.” Court concluded plaintiff “failed to state a claim for which relief can be granted,” and dismissed the suit.

Robin SILVER, M.D.; United States of America, U.S. Department of the Interior, Bureau of Land Management; and Patricia Gerrodette, Plaintiffs/Appellees, v. PUEBLO DEL SOL WATER COMPANY, an Arizona corporation; Thomas Buschatzke, in his official capacity as Director of the Arizona Department of Water Resources; Arizona Department of Water Resources, an agency of the State of Arizona, Defendants/Appellants, No. CV-16-0294-PR, 2018 WL 3763974 (Ariz. August 9, 2018) concerned whether the Arizona Department of Water Resources (ADWR) “is required to consider unquantified federal reserved water rights when it determines whether a developer has an adequate water supply.” The court’s analysis considered the agency’s regulations defining “physical and legal” availability. The court observed that per statute, groundwater must be withdrawn “from wells . . . located within the service area of the applicant,” and must be “withdrawn from depths that do not exceed the applicable maximum 100-year depth-to-static water level.” Court found the term “legal availability” ambiguous and adhered to ADWR’s interpretation of the term. Court ruled the ADWR is not required to consider “unquantified federal reserved water rights.”

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


Notice USDA is exploring potential sites for a proposed new headquarters location for the National Institute of Food and Agriculture (NIFA) and the Economic Research Service. Details here.

Notice USDA announces the opening of the solicitation for nominations to fill vacancies on the National Agricultural Research, Extension, Education, and Economic Advisory Board and its subcommittees. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICERule APHIS is adopting as a final rule, with changes, an interim rule that amended the regulations pertaining to certain diseases of livestock and poultry to specify conditions for payment of indemnity claims for highly pathogenic avian influenza. Details here.

ENVIRONMENTAL PROTECTION AGENCYRule EPA is proposing to approve as a State Implementation Plan (SIP) revision an Indiana submission to EPA dated October 2, 2015. Info here.

FISH AND WILDLIFE SERVICENotice the city of Gulf Shores, Alabama, is requesting a 30-year ITP for take of the federally listed Alabama beach mouse incidental to construction. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is reopening the comment period for the notice of availability that published in the Federal Register on March 27, 2018. In that document, FDA requested comments on the draft guidance for industry (GFI) #255 entitled “Elemental Impurities in Animal Drug Products–Questions and Answers.” Details here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS is announcing the dollar limitations on the amount of meat and meat food products, poultry, and poultry products that a retail store can sell to hotels, restaurants, and similar institutions without disqualifying itself for exemption from Federal inspection requirements. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS implements an accountability measure (AM) for the gray triggerfish recreational sector in the exclusive economic zone (EEZ) of the Gulf of Mexico for the 2018 fishing year through this temporary rule. Info here.