A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

JUDICIAL: Includes CWA, land use and CERCLA issues.

Conservation Law Foundation Plaintiff, v. United States Environmental Protection Agency, Regina McCarthy, Administrator and United States Environmental Protection Agency, Region I, H. Curtis Spalding, Regional Administrator Defendants, C.A. No. 15–165–ML, 2016 WL 7217628 (D.R.I. Dec. 13, 2016), plaintiffs sued under the Clean Water Act (CWA) claiming defendants failed to perform “non-discretionary” duties. Specifically, plaintiffs alleged defendants identified commercial and industrial dischargers impacting water quality, but did not notify the violators they were required to obtain discharge permits. Defendants argued that because the EPA “did not make a determination that NPDES [National Pollutant Discharge Elimination System] permits are required, there is no legal requirement for the EPA to notify dischargers of permit requirements or to send them permit applications.” Court found the “EPA’s election not to require permitting for stormwater discharges does not constitute a failure to perform a nondiscretionary duty under the CWA.” Defendants’ motion to dismiss granted.

In Ronald Hazelton and Karen Shesko, Appellants v. Ralph Hazelton, Janet Watson, Dennis Hazelton and Michael Brink, No. 61 WDA 2016, 2016 WL 7176950 (Pa. Super. Ct. Dec. 9, 2016), appellants filed declaratory judgment claiming appellees interfered with their rights to an 82-acre property, of which appellants “collectively own an approximately 13.34% share as tenants in common.” The trial court held there was “no case or controversy” and ruled for Appellee. Appellate court conceded appellants are tenants in common and “have a right to possession and enjoyment of the entire jointly owned property,” but found no evidence of a land use agreement. Court sided with trial court and found that “it is highly inequitable that minority owners of a farm veto the majority owner’s productive use of the land in order for the land to become fallow and uncultivated.”

United States of America, Plaintiff, v. Par Industrial Corporation, Defendant, CIVIL ACTION NO. 3:16-1703, WL 7175627 (S.D.W. Va. Dec. 8, 2016) concerned a civil suit by the U.S. government brought under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Plaintiff sought to recover costs after removing 177 tons of hazardous waste from defendant’s property. Plaintiff moved to strike defendant’s affirmative defenses claiming they are not permitted by CERCLA. Court observed the CERCLA statute “expressly permits three affirmative defenses to liability . . . (1) an act of God; (2) an act of war; and (3) an act or omission by an unrelated third party.” Court concluded that “all but one of [defendant’s] affirmative defenses have no bearing on the subject matter of this litigation and will prejudice the [plaintiff].” Plaintiff’s motion to strike granted.

LEGISLATIVE:

H.R. 875: Cross-Border Trade Enhancement Act of 2016. Bill’s text for status Passed Congress/Enrolled Bill (Dec 14, 2016) is now available.

H.R. 4680: National Park Service Centennial Act. Bill’s text for status Passed Congress/Enrolled Bill (Dec 14, 2016) is now available.

H.R. 6452: Ensuring Access to Pacific Fisheries Act. Bill’s text for status Passed Congress/Enrolled Bill (Dec 14, 2016) is now available.

REGULATORY: Includes USDA, APHIS, FNS, FS, ITA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: 7 CFR part 1924-A, Planning and Performing Construction and Other Development. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS will reestablish the General Conference Committee of the National Poultry Improvement Plan for a 2-year period. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS wants to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife. Info here.

Notice FWS seeks comment on applications to conduct activities with endangered species. Details here.

FOOD AND NUTRITION SERVICE: Rule FNS is updating Supplemental Nutrition Assistance Program regulations on eligibility criteria for retail food stores to participate in the Program by finalizing a proposed rule published February 17, 2016. Details here.

FOREST SERVICE:

Rule USDA is amending regulations pertaining to the National Forest System Land Management Planning. Info here.

Notice the Eastern Washington Cascades Provincial Advisory Committee will meet in Wenatchee, Washington. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice that on October 31, 2016, the Department of Commerce published results of the changed circumstances review of the antidumping duty order on frozen shrimp from India. Details here.

Notice that on August 10, 2016, the Department of Commerce published results of the administrative review of the countervailing duty order on pasta from Turkey. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures for commercial gray triggerfish in the exclusive economic zone of the South Atlantic. Info here.

Notice NOAA announces availability of a draft assessment, the Climate Science Special Report, for a 45-day public review. Details here.

Notice NMFS published a notice of the availability of the draft 2016 Alaska, Atlantic, and Pacific regional marine mammal stock assessment reports in the Federal Register on October 11, 2016. Info here.

Notice NMFS announces the adoption of a Final Endangered Species Act recovery plan  for the Oregon Coast Coho Salmon evolutionarily significant unit. Info here.