Agricultural Law Weekly Review: January 29, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Conservation: USDA to Create New Wetland Protection Program
On January 28, 2016, the United States Department of Agriculture issued a press release announcing “the establishment of the Natural Resources Conservation Service (NRCS) Wetland Mitigation Banking Program.”  Created as a result of the 2014 Farm Bill, the new program is designed to provide $9 million in resources to help “states, local governments or other qualified partners develop wetland mitigation banks that restore, create, or enhance wetland ecosystems, broadening the conservation options available to farmers and ranchers so they can maintain eligibility for other USDA programs.”

Avian Influenza: NAFTA Partners Sign Letter of Understanding on Avian Influenza
On January 19, 2016, the USA Poultry & Egg Export Council issued a press release announcing that government animal health officials from the United States, Canada, and Mexico had joined poultry and egg industry leaders in formally signing a Letter of Understanding on Avian Influenza.  According to the press release, the Letter of Understanding is “an arrangement to enhance collaboration on avian influenza and to work toward harmonizing procedures for responding to possible future detections of the virus.”

Labeling: New Labeling Requirements on Alaskan Pollock

On January 21, 2016, The U.S. Food and Drug Administration (FDA) announced an update to its “Seafood List” so as “to reflect a change for fish labeled as ‘Alaska Pollock.’”  As a result of FDA’s change, “only Gadus chalcogrammus caught in Alaskan waters or the exclusive economic zone (as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act) adjacent to Alaska can be called Alaskan ‘Pollock’ or Alaska ‘Pollock.’” 

Litigation: Court Approves Certification of Class Action Involving Pomegranate Seeds
On January 25, 2016, United States District Court Central District of California Southern Division Judge David O. Carter granted a class action certification in a case involving alleged injuries resulting from the risk of exposure to the hepatitis A virus after the consumption of pomegranate seeds imported from Turkey [CaseNo.: SA CV 13-1292-DOC (JCGx)].  The certified class action consolidated litigation from nine different single-state subclasses.

Food Safety: FSMA Requires Farmers to Retain Records to Prove "Qualified Exemption"

See previous Penn State Agricultural Law Blog article. 

Chesapeake Bay: Pennsylvania Announces New Plan to meet Chesapeake Bay Requirements

See previous Penn State Agricultural Law Blog article. 

Chesapeake Bay Update: Pennsylvania Announces New Plan to meet Chesapeake Bay Requirements

Written by M. Sean High – Staff Attorney

On January 21, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing a new strategy, “developed jointly by the Pennsylvania Departments of Agriculture, Conservation and Natural Resources (DCNR), and Environmental Protection (DEP),” to enable Pennsylvania to achieve federal Chesapeake Bay requirements.

According to the press release, the newly developed strategy stems from the commonwealth receiving “immense pressure from the federal Environmental Protection Agency (EPA) to improve water quality,” resulting from Pennsylvania’s inability to meet EPA “requirements to reduce water pollution under the requirements of federal court orders and regulations.”

According to the new strategy, titled A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, Pennsylvania’s inability to meet established EPA reduction goals has caused EPA to: 1) “withhold $2,896,723 in federal funding for Chesapeake Bay-related activities and grants”; and 2) identify potential targets, under federal authority, “to address the Pennsylvania Bay restoration shortfalls.”

According to the new strategy, Pennsylvania has not been compliant with EPA regulations regarding pollution reduction due to: 1) lack of farm inspection, documentation, and verification of pollution reduction activities; and 2) improper funding.  To correct these short comings, the new strategy proposes the following six recommendations:

1.      Establish a Chesapeake Bay Office within DEP to coordinate and implement Chesapeake Bay efforts and requirements.

2.      DEP and Conservation District staff should annually inspect 10% of all Pennsylvania farms in the Chesapeake Bay watershed (an increase from the current 1.8% annual inspection rate).

3.      Improve reporting, record keeping, and data systems (with the possibility of mandatory reporting requirements).

4.      Shift $1,250,000 of state water quality funding to Best Management Practices (BMP) programs and document the use of all BMPs (especially those previously unreported).

5.      Obtain additional sources of funding to assist in improving water quality and meeting federal Chesapeake Bay requirements.

6.      Identify any program, regulatory, or legislative changes that will allow Pennsylvania to achieve federal reduction goals by 2025. 

Chesapeake Bay Update: Environmental Group Calls for Moratorium on New Eastern Shore Poultry Operations

Written by Tyler R. Etter

On September 8, 2015, the Environmental Integrity Project (EIP) released a new report detailing the
expansion of poultry operations on the Eastern Shore, despite cutbacks to water quality monitoring
made by Maryland. As a result, EIP and its allies are calling for a moratorium on new poultry operations
until at least 2024, concerned with rising phosphorous levels in the Chesapeake Bay.

Of concern to the environmental groups is that of the 16 monitoring stations near the Eastern Shore
rivers only 7 are now operating following the state officials shutting down 9 of the stations two years
ago. The groups call attention to the damage caused to the ecosystem by the “high concentration of
poultry waste” on the Shore. They are also concerned about citizen exposure to antibiotic resistant
bacteria present in the waste. The groups chose 2024 for the moratorium period, as that is the year that
Maryland’s Phosphorous Management Tool will be fully implemented, broadening the protections to
the area.

Julie Oberg, spokeswoman for Maryland’s Department of Agriculture, stated that regulations have
effectively barred the use of manure of soils with high nutrient content, and any regulations apply to
new and old operations alike when concerned with water quality. The executive director of the
Maryland Farm Bureau, Valerie T. Connelly, called the moratorium “ridiculous” without targeting other
sources of pollution.

The executive director of Delmarva Poultry Industry Inc. stated that the expansion in operations is a
response to recent economic hardship and regulatory barriers. He claims the industry is just now
“catching up” from the setbacks, and the new operations will have the latest technology to protect the
environment.

Chesapeake Bay Update: Chesapeake Executive Council Meets in Washington

On July 23, 2015, the Chesapeake Executive Council met in Washington D.C. to discuss the status of the Chesapeake Bay cleanup efforts.

During the meeting, the Council announced the introduction of 25 management strategies to improve the health of the Bay. The council also agreed on two resolutions, one of which will increase the use of riparian forest buffers to meet cleanup and nutrient reduction goals. The resolution seeks to introduce new strategies and work plans with the USDA via conservation programs aimed at riparian buffers. The council also approved two joint letters, one of which focused on programs to keep livestock out of streams.

Pennsylvania Secretary John Quigley, from the state Department of Environmental Protection, reaffirmed Pennsylvania’s commitment to the cleanup and restoration efforts following an EPA assessment that declared the state to be “substantially off-track” in meeting with reduction goals. Secretary Quigley said that the state will improve the restoration efforts by increasing compliance enforcement, and by better accounting for the voluntary efforts made by farmers to reduce nutrient and sediment runoff. If the state fails to make improvements, the EPA may begin greater oversight within the area.

The deadline for the states to meet the nutrient reduction goals is set for 2025, with the next interim assessment set for 2017.

Written by Tyler R. Etter- Research Assistant
July 28, 2015

Chesapeake Bay Update: Court Upholds Chesapeake Bay TMDL

On July 6, 2015, the U.S. Third Circuit Court ofAppeals ruled against the American Farm Bureau Federation (AFBF) and in favor of the U.S. Environmental Protection Agency (EPA) regarding the legality of the Chesapeake Bay total maximum daily load (TMDL) regulations.  According to the court, AFBF was incorrect in its assertion that EPA’s Chesapeake Bay TMDL regulations exceeded EPA’s statutory authority to regulate.

The court opinion stated that under the federal Clean Water Act (CWA) Congress has required the establishment of TMDLs for certain waters.  According to the court, though undefined in CWA, EPA has interpreted the term TMDL “to require publication of a comprehensive framework for pollution reduction in a given body of water.” Accordingly, EPA’s Chesapeake Bay TMDL provided for “allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants.”

According to the court, one of AFBF’s primary assertions was that the correct reading of the “total load” in TMDL represented a single number, “like the ‘total’ at the bottom of restaurant receipt,” and did not permit specific allocations of permissible levels of nitrogen, phosphorous, and sediment.  The court disagreed that CWA only permitted one number, stating that “a plausible understanding of ‘total’ is that it means the sum of the constituent parts of the load.”

In addition to finding that “total” allowed for allocations of permissible levels of nitrogen, phosphorous, and sediment, the court found that EPA had not overstepped its statutory authority in requiring both TMDL target dates and state assurances that TMDL objectives would be fulfilled. 

Significantly, the court opinion stated that any solution to the Chesapeake Bay problem “will result in winners and losers.” According to the court, the winners include “environmental groups,” “fishermen,’ and “urban centers,” while the losers are “rural counties with farming operations,” and “the agricultural industry.”

Written by M. Sean High - Staff Attorney

July 7, 2015

Chesapeake Bay Update: Senators Seek Help for Susquehanna River Basin Farmers

On May 19, 2015, United States Senators Benjamin Cardin (D-MD) and Robert Casey Jr. (D-PA) sent a letter to Secretary of Agriculture Tom Vilsack requesting that the U.S. Department of Agriculture (USDA) increase resources to help Susquehanna River Basin farmers comply with Chesapeake Bay conservation efforts.

Citing a 2014 annual report on the Chesapeake Clean Water Blueprint, the Senators noted that overall efforts have been successful in improving the Susquehanna and Chesapeake Bay watersheds.  Nevertheless, Cardin and Casey stated that according to the report, Pennsylvania’s farmers had not adequately reduced their levels of nitrogen pollution.  The Senators further mentioned that because Pennsylvania had not met its nitrogen pollution goals, a group of Maryland legislators had contacted the Environmental Protection Agency (EPA), seeking enforcement against the Commonwealth.    

According to Cardin and Casey, USDA has a legal obligation (due to its membership on the Federal Leadership Committee for the Chesapeake Bay) to provide Susquehanna River Basin farmers with the financial and technical support necessary so that Pennsylvania can meet the pollution goals established for the Chesapeake Bay and avoid EPA enforcement action.   

Written by M. Sean High - Staff Attorney

May 22, 2015

Chesapeake Bay Update: Farm Groups Appeal Chesapeake Bay Ruling

On October 8, the American Farm Bureau Federation and the National Corn Growers Association are among the groups who said they have each filed a notice to appeal the September 13^th federal district court decision which upheld the Environmental Protection Agency’s rights to work with the six states in the 64,000 square foot Chesapeake Bay watershed to regulate runoff.

AFBF, the Pennsylvania Farm Bureau, the Fertilizer Institute, the National Chicken Council, the U.S. Poultry & Egg Association, National Pork Producers Council, National Corn Growers Association, National Turkey Federation, and the National Association of Home Builders originally filed suit in January 2011 in federal district court in Harrisburg, Pennsylvania.  The ruling of Judge Sylvia Rambo gave EPA wide discretion to work on a “pollution diet” saying in her decision that “[t]he EPA is within its rights under the Clean Water Act to partner with the six states in the bay watershed to cut the pollution that pours in from sewers and construction developments, and particularly chemical and biological waste from farms.”

The AFBF press release states that AFBF seeks an appeal “to preserve the primary role of states in setting land use policy and determining how to achieve water quality goals.”  According to AFBF, “the Clean Water Act puts states in the drivers’ seat to determine how farmers, builders, homeowners and towns will share the responsibility of achieving clean water.  EPA’s framework puts EPA in control of these decisions.”

For more information on the appeal, see the AFBF press release.  For more information on the district court ruling, see the District Court Opinion and our September 16 blog post.  Visit the Penn State Agricultural Law Center’s Chesapeake Bay Resource Area for further resources.

Written by Alyssa Looney – Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 9, 2013

Chesapeake Bay Update: EPA Prevails in Chesapeake Bay Watershed Suit

On September 13, 2013, the court for the Middle District of Pennsylvania filed a decision in favor of the Environmental Protection Agency (EPA) in the lawsuit brought by American Farm Bureau Federation (AFBF). Judge Rambo, writing for the court, stated that deference must be given to agency (EPA) findings due to their scientific and technical expertise. She explained that the plaintiff (AFBF) failed to meet its burden of showing that the EPA’s issuance of the Bay Total Maximum Daily Load was arbitrary and capricious. Additionally, the court found that the procedures established to ensure public participation in the TMDL drafting process were sufficient to withstand scrutiny under the Administrative Procedures Act. In Judge Rambo’s conclusion, she states that the EPA did not infringe on Bay state’s rights under the Clean Water Act because the CWA is an all-encompassing and comprehensive statute in which Congress envisioned a strong federal role in enforcing.

For more information on the lawsuit, please see the Penn State Agricultural Law Center’s Chesapeake Bay Resource Area.

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

September 16, 2013

Chesapeake Bay Update: The Chesapeake Bay Program Posts Abridged Watershed Agreement for Public Comments

On July 10, 2013, the Chesapeake Bay Program (CBP) released an abridged version of its Chesapeake Bay Watershed Agreement. The agreement, which is in its draft stage, is available for public input until August 15, 2013.

The CBP states that the agreement “outlines new goals and outcomes that will guide partners in protection, restoration and stewardship of the Chesapeake Bay.” The first Chesapeake Bay Agreement was signed in 1983, and the most current agreement was signed in 2000. The CBP hopes to evolve the Chesapeake Bay restoration process and stewardship effort through the new agreement.

The draft agreement contains a number of goals and outcomes including the maintenance of fisheries and enhancement of water quality. The signatories of the agreement will indicate their level of involvement in the Management Strategies developed to execute the goals and outcomes “depending upon relevance, resources, priorities, or other factors enhancing or limiting participation.”

The CBP states that once a final draft is created, stakeholder input will be solicited again.

For more information or to provide input, please see the CBP website on the Chesapeake Bay Watershed Agreement.

Please visit our Chesapeake Bay Resource Area for more information on the history of Chesapeake Bay Watershed Agreements.

Written by Sarah Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

July 15, 2013