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

ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.

JUDICIAL: Includes CWA and National Organic Program issues.

In UNITED STATES of America, People of the State of California, ex rel. California Department of Fish and Wildlife, et al., Plaintiffs, v. HVI CAT CANYON, INC., f/k/a Greka Oil & Gas, Inc., Defendant, No. CV 11–5097 FMO (SSx), 2018 WL 2325398 (C. D. Cal. Signed May 20, 2018), defendant operated an oil production facility and government sued alleging violations of the Clean Water Act (CWA). Defendant admitted oil was discharged from its facilities, but claimed no CWA violations as the creeks and waterways at issue “are not navigable waters within the meaning of the CWA.” Court observed that “[w]hen . . . wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’ ” Court considered the “significant nexus” test and noted it does not require “laboratory analysis of soil samples, water samples, or … other tests.” Court determined some of the waterways at issue presented triable issues and granted government’s summary judgment motion in part.

CENTER FOR FOOD SAFETY, et al., Plaintiffs, v. SONNY PERDUE, et al., Defendants, No. 15-cv-01590-HSG, 2018 WL 2357656 (N.D. Cal. May 24, 2018) concerned a USDA official Notice changing the review process for determining which substances (National List) may be used in food certified as “organic” under the Organic Foods Production Act (OFPA). Plaintiffs claimed the Notice “contravenes the substantive provisions of the OFPA, and is therefore arbitrary and capricious.” Defendants argued the Notice is “not ‘final agency action’ under the APA, and is therefore immune from judicial review.” Court determined that that the Notice “does not alter any substantive criteria for deciding which substances are included on the National List, and USDA retains ultimate discretion over whether to accept NOSB’s renewal recommendation.” Summary judgment granted for USDA.


H.R. 1397: To authorize, direct, facilitate, and expedite the transfer of administrative jurisdiction of certain Federal land. Text for status Reported by Senate Committee (May 24, 2018) is now available.

S. 2602: USE IT Act. Text for status Reported by Senate Committee (May 24, 2018) is now available.

S. 1333: Tribal HUD-VASH Act of 2017. Bill’s text for status Referred to House Committee (May 25, 2018) is now available.

H.R. 5979: To establish the Mill Springs Battlefield National Monument in the State of Kentucky as a unit of the National Park System. Referred to the House Committee on Natural Resources.

H.R. 5978: To amend the Food Security Act of 1985 to provide for certain payment limitations with respect to commodity programs. Referred to the House Committee on Agriculture.

H.R. 4910: Veterans Cemetery Benefit Correction Act. Text for status Passed Congress (May 26, 2018) is now available.

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

AGRICULTURAL SERVICE: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Timber Sale Contract Operations and Administration. Info here.


Rule corrects an error in the amendatory instruction in a final rule pertaining to the sulfur dioxide nonattainment plans for the Lemont and Pekin areas. Details here.

Rule EPA is approving a temporary modification of the boundaries of the Massachusetts Bay Dredged Material Disposal Site pursuant to the Marine Protection, Research, and Sanctuaries Act. Info here.

Rule EPA is proposing approval of elements of a State Implementation Plan (SIP) revision for the Houston- Galveston-Brazoria 2008 8-hour ozone National Ambient Air Quality Standards nonattainment area (HGB area). Details here.


Rule FWS will open 3 National Wildlife Refuges (NWRs) to hunting, open 1 NWR to sport fishing, increase the hunting activities available at 26 NWRs, increase sport fishing activities at 4 NWRs, and add pertinent refuge-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2018- 2019 season. Details here.

Notice FWS announces the availability of the following documents for review and comment by the public and Federal, Tribal, State, and local governments: Candidate Conservation Agreement with Assurances for Arctic Grayling in the Centennial Valley, Montana, and Draft Environment Assessment of the Centennial Valley CCAA. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the availability of a final guidance for industry entitled “Registration of Food Facilities: What You Need To Know About the FDA Regulation– Small Entity Compliance Guide.” Info here.


Notice the Gulf of Mexico Fishery Management Council will hold a four-day meeting to consider actions affecting the Gulf of Mexico fisheries in the exclusive economic zone. Details here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Skate Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.

RURAL UTILITIES SERVICE: Notice RUS invites comments on this information collection for which RUS intends to request approval from the Office of Management and Budget. Title: Rural Alaska Village Grant Program. Details here.