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

JUDICIAL: Includes CWA

In Coal. to Save the Menominee River Inc. v. U.S. EPA, No. 18-C-1798 2019 WL 5394202 (E.D. Wis. Oct. 21, 2019) the court determined that the plaintiffs failed to state a claim upon which relief could be granted and dismissed the case because the plaintiffs were mistaken that Environmental Protection Agency’s (EPA’s) decision to object to a proposed Clean Water Act (CWA) § 404 permit issued by the state of Michigan was a final agency action. Under the CWA, the United States Army Corps of Engineers (Corps) has the authority to issue § 404 dredge and fill permits which allow for the discharge of dredged or fill material into navigable waters. However, the CWA allows a state to request permission from the EPA to administer its own general permit program for dredged or fill materials, provided that EPA approves the state’s program and maintains supervisory role over the program. As part of its supervisory role, EPA can comment on a state’s proposed permit and require that that any issues EPA has with the permit be resolved before the state can issue it. Michigan is one of two states to have its own dredge and fill permitting program, which was approved by EPA in 1984.

The plaintiffs to this case take issue with a permit granted by Michigan to Aquila Resources Inc. (Aquila) for the purpose of building a mine along the Menominee River. During the permitting process, EPA commented on Aquila’s proposed permit, and required that EPA’s objections be resolved before Michigan was allowed to issue the permit. Michigan and Aquila worked together to resolve EPA’s objections, and Michigan issued the permit after EPA’s objections had been resolved. The plaintiffs then brought suit alleging that EPA had unlawfully approved the Aquila permit. The defendants argued that the plaintiffs had failed to state a claim under which relief could be granted because the plaintiff’s claim did not rest on a final agency action undertaken by EPA. The plaintiffs argued that EPA’s decision to comment on the proposed permit was a final agency action, while the defendants argued that the plaintiffs were really raising an untimely claim on EPA’s 1984 decision to grant Michigan permitting authority. Ultimately, the court agreed with the defendants and concluded that EPA’s decision to comment was not a final agency action on which the plaintiffs could bring a lawsuit and dismissed their case.

REGULATORY: Includes EPA, FWS, NOAA

ENVIRONMENTAL PROTECTION AGENCY

Notice of availability of EPA’s Preliminary Effluent Guidelines Program Plan 14 and a request for public comment. Info here.

FISH AND WILDLIFE SERVICE

Proposed rule to remove the inland population of the least tern species from the Federal List of Endangered and Threatened Wildlife. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Proposed Rule modifying the medical and beneficiary transfer provisions of the Individual Fishing Quota Program for the fixed-gear commercial Pacific halibut and sablefish fisheries. Info here.