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 water rights and crop insurance issues.

In Ctr. for Envtl. Law v. Washington Dep’t of Ecology, No. 74841-6-L, 2016 WL 6084104 (Wash. Ct. App. Oct. 17, 2016), the Pollution Control Hearings Board (PCHB) affirmed defendant’s (Ecology) issuance of a Report of Examination (ROE) ordering approval of a water right for a hydroelectric project. The project intended to divert water from a portion of a river through a powerhouse. The ROE included conditions ensuring that minimum flows would be “adequate to protect aesthetic values as determined by a future study.” Plaintiffs appealed, claiming PCHB erred because defendant “did not condition the ROE on the minimum instream flow rule.” Court considered whether defendant had the authority to issue a ROE and whether it abused its discretion. Court observed that “aesthetic flow testing . . . incorporated into the ROE is plainly designed to result in instream flows that are specifically tailored to the particular circumstances of the Project.” Court found that plaintiff provided “no support for its implicit assertion that the flows specifically tailored to the Project need be definitively determined before issuance of the ROE.” Court concluded plaintiff “did not carry its burden of demonstrating that the ROE violates the minimum instream flow rule.”  Summary judgment for defendant affirmed.

In Jody James Farms, JV v. The Altman Grp., Inc., No. 07-15-00060-CV, 2016 WL 6092370 (Tex. App. Oct. 17, 2016), plaintiff purchased a Crop Revenue Coverage Insurance Policy from defendant. The policy was issued for the 2010 crop year under the Federal  Crop Insurance Act, and reinsured by the Federal Crop Insurance Corporation (FCIC). Plaintiff appealed arbitration award for defendant contending arbitrator exceeded his authority and that there was no agreement to arbitrate. Appellate court applied majority view to the crop insurance policy and found the policy’s “incorporation of the AAA rules constitutes clear and unmistakable evidence the parties to the policy intended the arbitrator to decide whether [plaintiff’s] agreement to arbitrate is binding on it as against its effort to litigate its claims against Altman and Diaz in court.” Award for defendant affirmed.

REGULATORY: Includes EPA, FWS, FS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishing a tolerance for residues of fluridone in or on cotton gin byproducts. SePRO Corporation requested the tolerance under the Federal Food, Drug, and Cosmetic Act. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS  invite the public to comment on the following applications to conduct certain activities with endangered species, marine mammals, or both. Info here.

FOREST SERVICE: Notice that USDA, FS, State and Private Forestry, Cooperative Forestry staff, requests applications for the Community Forest and Open Space Conservation Program. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule that the gulf grouper and the island grouper warrant listing as endangered and threatened species. Details here.

Notice the Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Rip Current Visualization Survey and Focus Groups. Info here.

Notice inviting public to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Info here.

Notice NMFS announces the availability of the Southern Distinct Population Segment of Eulachon Draft Recovery Plan for public review. Info here.