Brook Duer—Staff Attorney
Audry Thompson—Research Assistant
The
Agricultural Law Weekly Review provides an update of recent agricultural law
developments from the local, state, national, and international levels.
Subscribe to the ALWR at pennstateaglaw.com.
WOTUS: EPA Releases New Navigable Waters Protection Rule
to Replace 2015 WOTUS Rule
On January 23, 2020, the U.S. Environmental Protection Agency and
the U.S. Army Corps of Engineers (collectively “EPA”) announced
the issuance of the Navigable
Waters Protection Rule. This long-awaited rule will provide a new
regulatory definition of “waters of the United States” for the purpose of
establishing the limits of EPA’s regulatory jurisdiction under the Clean
Water Act (CWA). It will be published in the
Federal Register as a final rule, without any additional comment period, and
its effective date will be sixty days after publication. To date, the Federal Register publication has
not occurred. This action follows the October 22, 2019, EPA repeal
of the existing and controversial 2015 Waters of the United States
(WOTUS) Rule, effective December 23, 2019. EPA
announced the repeal as step one
of the process to newly define “waters of the United States” under the CWA, and
the publication of the new Navigable Waters Protection Rule has been announced
as step
two and the completion of that process. EPA will conduct a public
webcast discussing the final Navigable Waters Protection Rule on February 13,
2020, at 2:00 p.m. Eastern Standard Time. Audio and video of the webinar
can be viewed live by registering or by streaming a recorded
version from EPA’s website. EPA maintains a website at www.epa.gov/nwpr devoted to the long regulatory and litigation history of the
2015 WOTUS Rule and the process that produced the new Navigable Waters
Protection Rule.
Biofuels: Court of Appeals Invalidates EPA
Grant of Renewable Fuel Standard Waivers
On January 24, 2020, the U.S. Court of Appeals
for the Tenth Circuit, sitting in Denver, Colorado, ruled that the U.S.
Environmental Protection Agency (EPA) exceeded its statutory authority by
granting the equivalent of new “exemptions,” rather than legally-authorized
“extensions” of existing exemptions, to three refineries from the federal Renewable Fuel Standard (RFS) biofuel blending requirements under the federal Clean Air Act. Renewable Fuel Association et al. v. U.S. Environmental
Protection Agency, Case number 18-9533, U.S.
Court of Appeals for the Tenth Circuit.
Under the Clean Air Act, the RFS establishes a yearly minimum for the amount of renewable fuels that must be blended into
American gasoline and diesel. Refineries defined as “small” under the law
are eligible for exemptions based upon a showing of disproportionate economic
hardship. Exemptions have increased from single digits in 2010 to over thirty
(30) presently granted with many more pending for 2020, upsetting biofuels
advocates due to decreased biofuel demand and, according to refineries in
compliance, increasing their burden to meet the yearly minimum.
Plaintiffs in the suit included the National Corn Growers Association, American
Coalition for Ethanol, the Renewable Fuels Association and National Farmers
Union. The case was on appeal from EPA’s
actions approving the waiver petitions of the refineries and is now remanded
for further EPA action consistent with the invalidation of the waivers granted.
Animal Welfare: Federal Court Strikes Down Kansas Agricultural
Protection Law
On January 22, 2020, the U.S. District Court for the District of
Kansas, ruled
that the Kansas Farm Animal and Field Crop and Research Facilities Protection
Act, K.S.A. §§ 47-1825 et seq., violates the United States Constitution’s First
Amendment. Animal
Legal Defense Fund, et al. v. Laura Kelly, et al., No. 18-2657-KHV.
The Kansas statute at issue was enacted nearly thirty years ago, in 1990, as an
early “ag-gag” law criminalizing various activities done during “undercover
investigations” of alleged mistreatment of animals at agricultural
production facilities. Various animal
rights groups challenged
the law in December of 2018 as overbroad because it prohibited a
substantial amount of protected speech and the court agreed, granting summary
judgment for the Plaintiffs. Since the ruling, on January 24, 2020,
Plaintiff Animal Legal Defense Fund filed a motion for a permanent injunction
preventing Kansas from enforcing the challenged provisions of the
law.
Animal Health: USDA Consolidates Animal Disease Laboratory
Approval Regulations
On January 24, 2020, USDA’s Animal and Plant Health Inspection
Service (APHIS) published a Final Rule in the Federal Register, effective
February 24, 2020, titled, “Approval
of Laboratories to Conduct Official Testing; Consolidation of Regulations.”
The final rule amends portions of 9 CFR Parts 71 - 93, following the May 30,
2019 publication of a proposed
rule and a public
comment period, to consolidate regulations governing the
approval of diagnostic laboratories for rendering APHIS-recognized official
regulatory test results for enumerated animal diseases. The National Animal
Health Laboratory Network (NAHLN) is composed of federal, state and
university-associated animal health laboratories, as well as, on a case-by-case
basis, private laboratories for certain animal diseases or needed
capabilities. According to the regulation, there are over 400
APHIS-approved laboratories. According
to the final rule, the amendments will “facilitate the approval of additional
laboratories in emergency situations.”
From National Ag Law Authorities & Sources:
Paul Goeringer, Maryland
Court Rules Poultry Farm Manager is Co-Employee of Integrator in Workers’ Compensation
Case (January 28,
2020).
Penn State Research
& News:
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department
of Agriculture Press Releases:
No new releases Jan. 22–28, 2020
U.S. Department of Agriculture Press Releases:
USDA
to Open the Application Window for the Second Round of ReConnect Program
Funding Friday (January 27,
2020).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices:
Department of Agriculture
50
Pa.B. 550 “Interstate and International Quarantine
Order—Swine Exhibition Requirements” Notice (January 25, 2020).
Department of Environmental Protection
Applications For National Pollutant Discharge Elimination System
(NPDES) Permits And Water Quality Management (WQM) Permits” Applications
(January 25, 2020).
Environmental Hearing Board
50
Pa.B. 620 “Lynda Williams v. Department of Environmental Protection
and Estate of Harry Simon, Permittee; EHB Doc. No. 2018-067-C” Notice (January
25, 2020).
Milk Marketing Board
50
Pa.B. 622 “Hearing and Presubmission Schedule; All Milk
Marketing Areas; Over-Order Premium” Notice (January 25, 2020).
Pennsylvania Public Utility Commission
Pennsylvania Legislature
H.B.
1003 “An Act amending Title 30 (Fish) of the
Pennsylvania Consolidated Statutes, in dams, bar racks and migration devices,
further providing for marking of dams” Referred to Game and Fisheries [Senate]
(January 24, 2020).
H.B.
523 “An Act amending the act of June 13, 1836
(P.L.551, No.169), referred to as the General Road Law, further providing for
repair of private roads” Referred to Local Government [Senate] (January
24, 2020).
H.B.
1187 “An Act amending Title 30 (Fish) of the
Pennsylvania Consolidated Statutes, in special licenses and permits, further
providing for Lake Erie fishing permits” Referred to Game and Fisheries
[Senate] (January 23, 2020).
H.B.
908 “An Act amending the act of January 19, 1968
(1967 P.L.992, No.442), entitled "An act authorizing the Commonwealth of
Pennsylvania and the local government units thereof to preserve, acquire or
hold land for open space uses,"further providing for local taxing options”
Referred to Local Government [Senate] (January 23, 2020).
H.B.
1779 “An Act amending the act of November 26, 1978
(P.L.1375, No.325), known as the Dam Safety and Encroachments Act, further
providing for definitions and for projects affecting submerged lands of the
Commonwealth” Laid on Table [House] (January 22, 2020).
H.B.
1677 “An Act providing for an annual revenue sharing
program for municipalities relating to tax-exempt real property; establishing
the Tax-exempt Property Municipal Assistance Fund; imposing powers and duties
on the Department of Community and Economic Development; and making an
inconsistent repeal” Laid on Table [House] (January 22, 2020).
H.B.
1584 “An Act amending Title 30 (Fish) of the
Pennsylvania Consolidated Statutes, in Pennsylvania Fish and Boat Commission,
repealing provisions relating to waterways patrolmen and employees” Removed
from Table (January 22, 2020).
H.B.
1037 “An Act amending the act of November 10, 1999
(P.L.491, No.45), known as the Pennsylvania Construction Code Act, in
preliminary provisions, further providing for definitions and for application;
and, in exemptions, applicability and penalties, further providing for
penalties [Wedding Barns]” Removed from Table (January 22, 2020).
H.B.
188 “An Act providing for property owner's bill of
rights statement” Laid on Table [House] (January 22, 2020).
H.B.
1755 “An Act amending the act of May 15, 1945
(P.L.547, No.217), known as the Conservation District Law, providing for
legislative report” Re-committed to Appropriations [House] (January 22,
2020).
H.B.
2240 “An Act establishing the Student Loan
Forgiveness for Farmers Program and prescribing powers and duties of the
Pennsylvania Higher Education Assistance Agency” Referred to Education
[House] (January 21, 2020).
H.B
827 “An Act designating certain activity by the
Delaware River Basin Commission as the exercise of the power of eminent domain
that entitles the owners of the property in question to appropriate and just
compensation” Removed from Table (January 21, 2020).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices:
Agricultural Marketing Service
85
FR 4913 “Revision of Three U.S. Grade Standards for
Carrots” Proposed Rule—Comment Period (January 28, 2020).
85
FR 4603 “Revisions to the Federal Seed Act Regulations”
Proposed Rule—Comment Period (January 27, 2020).
85
FR 3860 “National Bioengineered Food Disclosure
Standard; Validation of Refining Processes” Proposed Rule—Comment Period
(January 23, 2020).
85
FR 3551 “Walnuts Grown in California; Stays of Reserve
Obligation and Its Requirements” Proposed Rule—Comment Period (January
22, 2020).
Animal and Plant Health Inspection Service
85
FR 4192 “Approval of Laboratories To Conduct Official
Testing; Consolidation of Regulations” Rule (January 24, 2020).
Commodity Credit Corporation
Delaware River Basin Commission
85
FR 4954 “Notice of Proposed Methodology for the 2020
Delaware River and Bay Water Quality Assessment Report” Notice—Comment
Period (January 28, 2020).
85
FR 4953 “Notice of Public Hearing and Business Meeting
February 12 and March 11, 2020” Notice (January 28, 2020).
Federal Emergency Management Agency
85
FR 5004 “Agency Information Collection Activities:
Submission for OMB Review; Comment Request; Public Assistance Program” Notice—Comment
Period (January 28, 2020).
Fish and Wildlife Service
85
FR 5016 “Endangered and Threatened Species; Receipt of
Recovery Permit Applications” Notice—Comment Period (January 28,
2020).
85
FR 5072 “Endangered and Threatened Wildlife and Plants;
Designation of Critical Habitat for the Big Sandy Crayfish and the Guyandotte
River Crayfish” Proposed Rule—Comment Period (January 28, 2020).
85
FR 4692 “Endangered and Threatened Wildlife and Plants;
Initiation of 5-Year Status Reviews of 66 Species in California and Nevada” Notice
(January 27, 2020).
85
FR 4691 “Endangered and Threatened Species; Receipt of
Recovery Permit Applications” Notice—Comment Period (January 27,
2020).
85
FR 4694 “Habitat Conservation Plans for the Mount
Hermon June Beetle, Zayante Band-Winged Grasshopper, and Ben Lomond
Spineflower; Categorical Exclusion for the Renovation of the Santa Cruz County
Juvenile Hall and the Verizon Wireless Expansion Project; Santa Cruz County,
California” Notice—Comment Period (January 27, 2020).
85
FR 4334 “Endangered and Threatened Wildlife and Plants;
Draft Recovery Plan for the Rusty Patched Bumble Bee” Notice—Comment Period
(January 24, 2020).
85
FR 4336 “Endangered and Threatened Wildlife and Plants;
Draft Recovery Plan for the Dakota Skipper” Notice—Comment Period
(January 24, 2020).
85
FR 3938 “Multistate Conservation Grant Program; Fiscal
Year 2018 Priority List and Approval To Award Funds for Conservation Projects” Notice
(January 23, 2020).
85 FR 3940
85
FR 3601 “Migratory Bird Permits; Management of
Double-Crested Cormorants (Phalacrocorax auritus) Throughout the United States”
Proposed Rule—Comment Period (January 22, 2020).
Food and Drug Administration
85
FR 4204 “New Animal Drugs; Approval of New Animal Drug
Applications; Withdrawal of Approval of New Animal Drug Applications; Changes
of Sponsor; Change of Sponsor's Address” Rule (January 24, 2020).
85
FR 4210 “New Animal Drugs; Withdrawal of Approval of a
New Animal Drug Application; Withdrawal of Approval of Abbreviated New Animal
Drug Applications” Rule (January 24, 2020).
85
FR 3929 “Agency Information Collection Activities;
Proposed Collection; Comment Request; Reporting Associated With Animal Drug and
Animal Generic Drug User Fees” Notice—Comment Period (January 23,
2020).
Food and Nutrition Service
85
FR 4094 “Simplifying Meal Service and Monitoring
Requirements in the National School Lunch and School Breakfast Programs” Proposed
Rule—Comment Period (January 23, 2020).
85
FR 4064 “Streamlining Program Requirements and
Improving Integrity in the Summer Food Service Program (SFSP)” Proposed
Rule—Comment Period (January 23, 2020).
Labor Department
85
FR 5040 “Agency Information Collection Activities;
Submission for OMB Review; Comment Request; Domestic Agricultural In-Season
Wage Report” Notice—Comment Period (January 28, 2020).
Land Management Bureau
85
FR 5021 “Agency Information Collection Activities;
Submission to the Office of Management and Budget for Review and Approval;
Grazing Management: Range Improvement Agreements and Permits” Notice—Comment
Period (January 28, 2020).
85
FR 3943 “Agency Information Collection Activities; Land
Use Application and Permit” Notice—Comment Period (January 23,
2020).
National Agricultural Statistics Service
85
FR 4270 “Notice of Intent To Request Revision and
Extension of a Currently Approved Information Collection [Agricultural Surveys
Program]” Notice (January 24, 2020).
Wage and Hour Division
85
FR 4715 “Agency Information Collection Activities;
Comment Request; Information Collection-Housing Occupancy Certificates Under
the Migrant and Seasonal Agricultural Worker Protection Act” Notice
(January 27, 2020).
U.S. House Agriculture
Committee Actions:
H.R.5587
“To amend the Federal Food, Drug, and Cosmetic Act with respect to the
regulation of hemp-derived cannabidiol and hemp-derived cannabidiol containing
substances” Referred to the Subcommittee on Biotechnology, Horticulture, and
Research (January 23, 2020).
H.R.5627
“MATCH Act of 2020” Referred to the Subcommittee on Conservation and Forestry
(January 22, 2020).
H.R.5601
“Property Rights Protection Act of 2020” Referred to the Subcommittee on
Conservation and Forestry (January 22, 2020).
H.R.5430
“United States-Mexico-Canada Agreement Implementation Act” Presented to
President (January 22, 2020).
S.1982
“Save Our Seas 2.0 Act” Referred to the Subcommittee on Conservation and
Forestry (January 22, 2020).
U.S. Senate Agriculture,
Nutrition, And Forestry Committee Actions:
No new actions Jan. 22–28, 2020
S.3221
“Farm System Reform Act of 2019” Read twice and referred to the Committee on
Agriculture, Nutrition, and Forestry (January 21, 2020).
January 22-28, 2020 Top Tweets:
Horsemeat
scam shows weak links in food chain: Traceability, controls, sanctions and
transparency must be improved (January 22, 2020)
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