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

ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, February 21st: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.

JUDICIAL: Includes CWA, ESA, and energy issues.

In HAWAI‘I WILDLIFE FUND, a Hawaii non-profit corporation; Sierra Club—Maui Group, a non-profit corporation; Surfrider Foundation, a non-profit corporation; West Maui Preservation Association, a Hawaii non-profit corporation, Plaintiffs-Appellees, v. COUNTY OF MAUI, Defendant-Appellant. No. 15-17447, 2018 WL 650973 (9th Cir. February 1, 2018), defendant appealed summary judgment ruling declaring it violated the Clean Water Act (CWA) “when it discharged pollutants from its wells into the Pacific Ocean, and further finding it had fair notice of its violations.” County argued that any point source at issue here “must convey the pollutants directly into the navigable water,” for a CWA violation.  Here, defendants contended that the wells discharged into “groundwater, and then indirectly into the Pacific Ocean. Court concluded, however, that County could not “build an ocean outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit,” without violating the CWA. Summary judgment for plaintiffs affirmed.

In BUFFALO FIELD CAMPAIGN et al., Plaintiffs, v. Ryan ZINKE et al., Defendants, No. 16–cv–1909 (CRC), 2018 WL 646887 (D.D.C. January 31, 2018), plaintiffs asked Fish and Wildlife Service (FWS) to add the Yellowstone bison population to the federal endangered species list. FWS ruled plaintiffs’ petition “failed to present sufficient scientific evidence that listing the bison may be warranted.” Plaintiffs then sued under the Administrative Procedure Act (APA), alleging the agency’s ruling was “arbitrary and capricious.” Court granted plaintiff’s motion of summary judgment after concluding that FWS “applied an improper standard when evaluating [plaintiffs’] petition.”

In MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff, v. EASEMENTS TO CONSTRUCT, OPERATE, AND MAINTAIN A NATURAL GAS PIPELINE OVER TRACTS OF LAND IN GILES COUNTY, CRAIG COUNTY, MONTGOMERY COUNTY, ROANOKE COUNTY, FRANKLIN COUNTY, AND PITTSYLVANIA COUNTY, VIRGINIA, et al., Defendants, No. 7:17-cv-00492, 2018 WL 648376 (W.D. Va. January 31, 2018), the Federal Energy Regulatory Commission (FERC) authorized plaintiff to construct a natural gas pipeline. Plaintiff sought to condemn portions of 300 properties for permanent easements for the path of the pipeline and was unable to acquire the properties despite offering $3,000 for each. Defendants, landowners of the properties at issue, moved to dismiss. Plaintiff also moved for a preliminary injunction seeking immediate possession of the properties. Court concluded that plaintiff “is entitled to condemn the land as a matter of law,” and ruled plaintiff “can satisfy the four factors required under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008), to receive a preliminary injunction.”


H.R. 2888: Ste. Genevieve National Historical Park Establishment Act. Added to the House’s schedule for the coming week.

H.R. 4919: To amend the Food and Nutrition Act of 2008 to provide for the establishment of the National Accuracy Clearinghouse. Referred to the House Committee on Agriculture.

H.R. 219: Swan Lake Hydroelectric Project Boundary Correction Act. Added to the House’s schedule for the coming week.

H.R. 2371: Western Area Power Administration Transparency Act. Added to the House’s schedule for the coming week.

S. 2363: A bill to establish the Creating American Investment, Redevelopment, and Opportunity Task Force. Text is now available.

REGULATORY: includes AMS, APHIS, CCC, EPA, FWS, FDA, and NOAA rules and notices.


Rule implements a recommendation from the Far West Spearmint Oil Administrative Committee to revise the quantity of Class 3 (Native) spearmint oil that handlers may purchase from, or handle on behalf of, producers during the 2017-2018 marketing year, which began on June 1, 2017. Info here.

Rule AMS is amending the regulations under the Perishable Agricultural Commodities Act (PACA or Act) to enhance clarity and improve the administration and enforcement of the PACA. Info here.

Rule AMS announces a delay of the California Federal Milk Marketing Order (FMMO) rulemaking proceeding and the Agricultural Marketing Service’s (AMS) intention to await the U.S. Supreme Court decision on a related legal matter prior to proceeding further with this rulemaking. Details here.

ANIMAL AND PLANT HEATLH INSPECTION SERVICERule APHIS notifies the public of our decision to supplement our requirements governing the importation of fresh sweet orange, grapefruit, mandarin, clementine, and tangerine fruit from Colombia into the United States and are requesting public comment on these changes. Info here.

COMMODITY CREDIT CORPORATION: Notice announces that NRCS will request an extension for a currently approved information collection for long-term contracting forms. Details here.


Rule EPA and the Department of the Army are publishing a final rule adding an applicability date to the “Clean Water Rule: Definition of ‘Waters of the United States’ ” published June 29, 2015 (the “2015 Rule”) of February 6, 2020. Details here.

Rule EPA Region 10 announces the deletion of the Vancouver Water Station #1 Superfund Site (Site) located in Vancouver, Washington, from the National Priorities List (NPL). Info here.

Rule EPA is proposing to approve revisions to the Missouri state plan for designated facilities and pollutants developed under sections 111(d) and 129 of the Clean Air Act (CAA) that were requested by Missouri Department of Natural Resources (MDNR) in two separate submissions made on August 8, 2011 and on July 3, 2014. Details here.


Rule prescribes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off- reservation trust lands, and ceded lands. Info here.

Notice FWS announces the availability of several documents related to an incidental take permit (ITP) application. American Electric Power applied for the requested ITP, which would be in effect for a three-year period in Hughes, Okfuskee, and Seminole Counties, Oklahoma. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is correcting a notice entitled “Hazard Analysis and Risk-Based Preventive Controls for Food for Animals; Draft Guidance for Industry; Availability” that appeared in the Federal Register of January 23, 2018. Details here.


Rule NMFS is prohibiting directed fishing for Pacific cod by non- American Fisheries Act (AFA) crab vessels that are subject to sideboard limits, and operating as catcher vessels (CVs) using pot gear, in the Western Regulatory Area of the Gulf of Alaska (GOA). Details here.

Rule NMFS is reallocating the projected unused amounts of the Aleut Corporation’s and the Community Development Quota pollock directed fishing allowances from the Aleutian Islands subarea to the Bering Sea subarea directed fisheries. Info here.

Rule NMFS specifies an annual catch limit (ACL) for 2017 of 3,500 lb for Hawaii Kona crab, and an accountability measure (AM) to correct or mitigate any overages of the catch limit. Details here.

Rule NMFS issues regulations to implement management measures described in an abbreviated framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico (Gulf) Fishery Management Council. Info here.

Rule NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the Gulf of Alaska. Info here.

Rule implements status quo commercial quotas for the Atlantic surfclam and ocean quahog fisheries for 2018 and projected status quo quotas for 2019 and 2020. Details here.