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

                                                                                                                                               

JUDICIAL: Includes CWA

In Washington Cattlemen’s Ass’n v. U.S. EPA, No. C19-0569-JCC, 2019 WL 7290590 (W.D. Wash. Dec. 30, 2019), the court dismissed as moot the plaintiff’s challenge to the 2015 Waters of the United States rule (“2015 WOTUS rule”). The plaintiff filed this case seeking to prevent the 2015 WOTUS rule, which defines what waterbodies receive automatic protection under the Clean Water Act (“CWA”), from taking effect. However, the Environmental Protection Agency (“EPA”) repealed the 2015 WOTUS rule in October, 2019 and the repeal took effect in late December, 2019. Because the 2015 WOTUS rule has been repealed, the court dismissed the plaintiff’s case as moot.

In Columbia Riverkeeper v. Wheeler, No. 18-35982, 2019 WL 6974376 (9th Cir. Dec. 20, 2019), the court concluded that the Environmental Protection Agency (“EPA”) had violated the Clean Water Act (“CWA”) by failing to issue Total Maximum Daily Loads (“TMDLs”) for the Columbia ad Snake Rivers in Washington and Oregon. This case began when environmental organizations filed a lawsuit under the CWA to compel EPA to develop and issue temperature TMDLs, which would limit the amount of discharges exceeding a certain temperature allowed to enter each waterbody daily, for the Columbia and Snake Rivers. According to the plaintiffs, the failure of either Washington or Oregon to issue temperature TMDLs for the rivers triggers a mandatory statutory obligation for EPA to develop the TMDLs instead. EPA argued that the mandatory statutory obligation that requires EPA to develop a TMDL when a state fails to do so does not apply to a temperature TMDL. The court disagreed, concluding that if states failed to submit temperature TMDLs, then EPA was required to develop and issue them.

                                                                                                                                               

REGULATORY: Includes AMS, APHIS, EPA, FWS, FSIS, NOAA

AGRICULTURAL MARKETING SERVICE

Proposed rule that would adjust representation on the Cattlemen’s Beef Promotion and Research Board to reflect changes in domestic and imported cattle inventories that have occurred since the Board was last reapportioned in July 2017. Info here.

ANIMAL PLANT HEALTH INSPECTION SERVICE

Notice advising the public that Burma (Myanmar) has been added to the list of regions that APHIS considers to be affected with African swine fever. Info here.

Notice advising the public that Servia has been added to the list of regions that APHIS considers to be affected with African swine fever. Info here.

Notice that APHIS is reopening the comment period for its proposal to modify a system of records titled the Animal Welfare Act and Horse Protection Act. Info here.

ENVIRONMENTAL PROTECTION AGENCY

Notice announcing the availability of EPA’s draft human health and/or ecological risk assessment for the pesticide registration review of chromated arsenicals; creosote; dichromic acid, disodium salt, dehydrate; and pentachlorophenol. Info here.

Notice announcing the availability of EPA’s revised interim pesticide registration review decision for sodium cyanide. Info here.

Notice announcing the availability of EPA’s proposed interim pesticide registration review decisions for atrazine, propazine, and simazine. Info here.

Notice that EPA has granted emergency exemptions under the Federal Insecticide, Fungicide, and Rodenticide Act for use of pesticides listed in this notice. Info here.

Final rule establishing a time-limited tolerance for residues of fenpropathrin in or on fuzzy kiwifruit. Info here.

FISH AND WILDLIFE SERVICE

Final rule removing the Hawaiian hawk from the Federal List of Endangered and Threatened Wildlife. Info here.

FOOD SAFETY AND INSPECTION SERVICE

Notice announcing the availability of an undated version of its guideline on how establishments can make label claims concerning the fact that bioengineered or genetically-modified ingredients or animal feed were not used in the production of meat, poultry, or egg products. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Temporary rule adjusting the Swordfish General Commercial permit retention limits for the Northwest Atlantic, Gulf of Mexico, and U.S. Caribbean regions for January through June of the 2020 fishing year. Info here.

Temporary rule adjusting the 2020 total allowable catch amounts for the Bering Sea and Aleutian Islands pollock, Atka mackerel, and Pacific cod fisheries. Info here.

Temporary rule adjusting the 2020 total allowable catch amounts for the Gulf of Alaska pollock and Pacific cod fishery. Info here.

Temporary rule prohibiting directed fishing for Pacific cod in the Gulf of Alaska. Info here.