April 22, 2024
Agricultural Law Weekly Review—April 22, 2024
Webinars This Week!
- Apr. 23, 2024, U.S. State Milk Pricing & Supports, Part 1
- Apr. 26, 2024, Understanding the Basics of Producer Protections for Buyer Default
Nutrition Programs: USDA Publishes WIC Final Rule—Includes White Potatoes, Reduces Milk 🌾
On April 18, 2024, the U.S. Department of Agriculture’s (USDA) Food and Nutrition Service (FNS) published in the Federal Register a final rule (89 FR 28488) finalizing revisions to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Also announced by USDA, the final rule enacts numerous changes, including
- Allowing the purchase of white potatoes, fresh cut herbs, and larger sizes of packaged fruits and vegetables;
- Allowing WIC State agencies the “option to authorize nut and seed butters as a substitute for peanut butter”;
- Specifying “a limit of 6 grams of added sugars per dry ounce of breakfast cereal,” which “no longer applies to naturally occurring sugars, in effect creating a more permissive standard for products containing naturally occurring sugars”; and
- Increasing the Cash Value Voucher (CVV) amounts “consistent with the temporary increase[s] in the CVV” in the Consolidated Appropriations Acts of 2022 ( L. 117-103), 2023 (Pub. L. 117-328) and 2024 (Pub. L. 118-42).
Additionally, the final rule reduces the maximum monthly juice allowance to 64 ounces; “allow[s] participants to substitute a $3 CVV for the full juice amount,” and makes several notable changes for dairy products, including
- Reducing maximum monthly allowances of milk from 16–24 quarts to 12–16 quarts;
- Allowing only unflavored milk;
- Allowing plant-based milk alternatives, yogurts, and cheeses as milk substitution options;
- Requiring “106 IU (2.67 micrograms) of vitamin D per 8 ounces of yogurt”; and
- “Allowing reduced-fat yogurts for 1-year-old children without restriction.”
The rule becomes effective June 17, 2024, although WIC state agencies have until April 20, 2026 to implement the rule and until April 19, 2027 to implement the yogurt minimum vitamin D requirement. According to the rule, state agencies must implement the increased CVV, “adjusted for inflation, for children to $26, pregnant and postpartum women to $47, and partial and fully breastfeeding women to $52 on June 17, 2024.”
Local Food: Arizona, Virginia Pass Bills Regulating Homemade Food Products
On March 25, 2024, Virginia Governor Glenn Youngkin signed into law HB759 (Chapter 131) which “increases from $3,000 to $9,000 the gross sales revenue cap for sales of pickles and other acidified vegetables that have an equilibrium pH value of 4.6 or lower and are processed and prepared in a private home without an inspection as otherwise required to operate a food establishment.” Also announced by the governor, the bill also exempts from inspection and permitting requirements “private homes where the resident processes and prepares certain food products . . . to sell . . . at a temporary event that operates for a period of no more than 14 consecutive days” and allows the seller to “advertise such food products over the Internet provided that the sale takes place in person and complies with certain restrictions.” Additionally, on March 29, 2024, Arizona Governor Katie Hobbs signed into law HB 2042 (Chapter 18), which defines “cottage food products” as “non-hazardous food items prepared in a home kitchen for commercial purposes” and establishes “necessary measures for food preparation and sale, with special considerations for food prepared in home kitchens, including labeling and handling requirements and exemptions.” See also the Center’s Food Safety Modernization Act Virtual Resource Room.
National Agricultural Policy: Supreme Court Allows Taking Clause Claim to Continue Under State Law
On April 16, 2024, the U.S. Supreme Court issued an opinion vacating the circuit court’s judgment and remanding a case filed by several Texas property owners seeking compensation under the Fifth Amendment’s Takings Clause and the Texas Constitution when a highway barrier wall constructed by the state caused flooding to their property after Hurricane Harvey in 2017 and Tropical Storm Imelda in 2019. Devillier v. Texas, No. 22-913; 21-40750 (5th Cir.); 3:20-cv-00223 (S.D. Tex.). Although the district court, in a memorandum opinion, had determined that “a property owner can sue the State directly under the Fifth Amendment’s Takings Clause” because of its “self-executing nature,” the circuit court, in a single-paragraph opinion, vacated the district court’s decision and held that “the Fifth Amendment Takings Clause . . . does not provide a right of action for takings claims against a state.” The Supreme Court determined that the “case . . . does not present the circumstance in which a property owner has no cause of action to seek just compensation” because “Texas law provides a cause of action that allows property owners to vindicate their rights under the Takings Clause,” stating that “constitutional concerns do not arise when property owners have other ways to seek just compensation.”
WOTUS: Army Publishes Guidance Memo on Civil Works Actions After Sackett Decision
On March 22, 2024, the Department of the Army’s Assistant Secretary for Civil Works published a guidance memo to the U.S. Army Corp of Engineers on how the Corps should execute its Civil Works missions in response to the Supreme Court’s decision in Sackett v. EPA, which “narrow[ed] which wetlands fall under the definition of ‘waters of the United States’ (WOTUS).” The memo states that “[d]espite the lack of protection under the Act, these aquatic resources continue to be of vital importance to the functioning of healthy watersheds and ecosystems” and directs the Corps “to use applicable authorities and available resources to engage in specific actions to protect, restore and enhance our Nation’s waters.” The memo outlines three categories of Civil Works Actions and details priorities and funding for each:
- Aquatic Ecosystem Restoration—“Projects restoring hydrologic connectivity for floodplain wetlands and improving the physical and biological integrity of certain ephemeral streams will be prioritized within the Corps’ Aquatic Ecosystem Restoration Business Line . . . . [T]he Fiscal Year 2025 President’s Budget includes $13 million . . . for this effort.”
- Technical Assistance Programs—“The Corps can provide eligible entities with watershed and restoration planning assistance, which can benefit aquatic resources which are most impacted in a post-Sackett environment . . . . [The Assistant Secretary] ha[s] reserved $5 million . . . to support this effort.”
- Nature-based Solutions—“The Corps will identify those current initiatives in place to promote the development and integration of more nature-based solutions into Civil Works project planning, design, and construction activities as integral features of project function and/or mitigation . . . includ[ing] strategies to increase the beneficial use of dredged material . . . .”
Additionally, the memo directs the Corps to “continue to make information regarding approved jurisdictional determinations available to the public” and “continue to follow the provisions in the 2008 Mitigation Rule regarding the ability of the Corps to approve the use of non-jurisdictional aquatic resources and other resources to provide compensatory mitigation for Department of the Army permits.” The memo states that, within one year, “the Corps will provide a comprehensive status update on the implications of the Sackett decision and the actions taken under the directives in this memorandum.” See also the Center’s Waters of the United States Virtual Resource Room and Issue Tracker.
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CENTER PROGRAMS & RESOURCES
Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering dairy industry legal and regulatory developments with an in-depth focus topic. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Tuesdays, noon–1 pm (ET). Upcoming:
- Apr. 23, 2024, U.S. State Milk Pricing & Supports, Part 1
- July 16, 2024, S. State Milk Pricing & Supports, Part 2
Understanding Agricultural Law Series. A free monthly Zoom webinar series for agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Fridays, noon–1 pm (ET). Upcoming:
- Apr. 26, 2024, Understanding the Basics of Producer Protections for Buyer Default
- May 24, 2024, Understanding the Basics of Pennsylvania’s Agricultural Area Security Law
- June 28, 2024, Understanding the Basics of the Clean Water Act & Agriculture
- July 26, 2024, Understanding the Basics of Agritourism Laws
- Aug. 23, 2024, Understanding the Basics of the H-2A Temporary Agricultural Worker Program
Succession Planning for Forest Landowners
- May 4, 2024, 9:30am–3:00pm. Brook Duer Presents with Penn State Extension, in-person at Penn State Extension Dauphin County.
Podcasts:
Agricultural Law Podcast
PFAS Soil Contamination Fuels Liability Suit Over Biosolid Land Application (Mar. 21, 2024)
Farmland Legal Energy Podcast
Introduction to Wind Farms and How Farmers Can Utilize Wind Power
Methane Production From Manure
An Introduction to Hydrogen and Agriculture
An Introduction to Anaerobic Digestion
Publications:
Anaerobic Digestion: An Alternative Energy Source for Farmers (Dec. 2023).
Resources of Interest:
Nat’l Agric. Law Ctr., Ag, water and environmental law experts convene at University of Nevada, Reno, Harrison Pittman (Apr. 12, 2024)
Nat’l Agric. Law Ctr., Update on Proposed Food Additive Bans, Emily Stone (Apr. 11, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, The Essential Role of Notaries, Robert Moore (Apr. 10, 2024)
Univ. Md. Risk Mgmt. Educ. Blog, Produce Safety Rule Grower Training May 18 in Princess Anne, Nicole Cook (Apr. 10, 2024)
Southern Ag Today, Prospective Plantings, Feed Prices and Implications for Feeder Cattle Markets, Kenny Burdine (Apr. 9, 2024)
Tex. A&M Agric. Law Blog, Court Considers Nuisance and Trespass Complaint Against Texas Feed Mill, Tiffany Dowell Lashmet (Apr. 8, 2024)
Agric. Law & Tax’n Blog, Family Settlement Agreement for Farm Family Not Done Properly, Roger McEowen (Apr. 7, 2024)
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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
USDA Forest Service Invests More Than $232M to Support Schools, Roads, Other Services as Part of Investing in America Agenda (Apr. 12, 2024)
WHAT THEY ARE SAYING: Biden-Harris Administration Announces Finalized Science-Driven Updates to Foods Provided Through WIC (Apr. 10, 2024)
Biden-Harris Administration Announces Finalized Science-Driven Updates to Foods Provided Through WIC (Apr. 9, 2024)
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
Biden-Harris Administration Finalizes First-Ever National Drinking Water Standard to Protect 100M People from PFAS Pollution (Apr. 10, 2024)
Biden-Harris Administration Takes Action to Cut PFAS from U.S. Government Custodial Contracts (Apr. 8, 2024)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Settles a Packers and Stockyards Case with Wright County Livestock Auction LLC (Apr. 8, 2024)
USDA Settles a Packers and Stockyards Case with Tina Livestock Market LLC (Apr. 8, 2024)
Animal and Plant Health Inspection Service (APHIS)
APHIS Supports Projects to Control and Prevent Chronic Wasting Disease (Apr. 9, 2024)
Food and Nutrition Service (FNS)
Biden-Harris Administration Announces Finalized Science-Driven Updates to Foods Provided Through WIC (Apr. 9, 2024)
Forest Service
USDA Forest Service invests more than $232M to support schools, roads, other services as part of Investing in America agenda (Apr. 12, 2024)
National Institute of Food and Agriculture (NIFA)
Number of AFRI FY 2024 Commodity Board Co-Funding Topics Breaks Record; Expands Focus on Nutrition (Apr. 12, 2024)
Natural Resources Conservation Service (NRCS)
NRCS in the Caribbean Area Uses Streamlined Process to Accelerate High Demand Conservation Funding to Producers (Apr. 11, 2024)
NRCS Texas announces additional 2024 National Water Quality Initiative sign-ups through EQIP (Apr. 8, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register Apr. 8–12, 2024):
Agricultural Marketing Service
89 FR 25775 Rule: “Pears Grown in Oregon and Washington; Increased Assessment Rate for Processed Pears” (Apr. 12, 2024)
89 FR 25778 Rule: “Domestic Dates Produced or Packed in Riverside County, California; Decreased Assessment Rate” (Apr. 12, 2024)
89 FR 25543 Proposed Rule—Comment Period: “Pecan Promotion, Research, and Information Order: Referendum” (Apr. 11, 2024)
89 FR 25187 Proposed Rule—Comment Period: “National Bioengineered Food Disclosure Standard; Request for Information on Electronic and Digital Link Disclosures” (Apr. 10, 2024)
89 FR 24337 Rule: “Raisins Produced from Grapes Grown in California; Increased Assessment Rate” (Apr. 8, 2024)
89 FR 24393 Proposed Rule—Comment Period: “Onions Grown in South Texas; Redistricting and Reapportionment of Committee Membership” (Apr. 8, 2024)
Agriculture Department
89 FR 25558 Notice: “Submission for OMB Review; Comment Request [Animal Plant and Health Inspection Service: Commercial Transportation of Equines for Slaughter]” (Apr. 11, 2024)
89 FR 24776 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Understanding Risk Assessment in Supplemental Nutrition Assistance Program (SNAP) Payment Accuracy]” (Apr. 9, 2024)
Animal and Plant Health Inspection Service
89 FR 24339 Rule: “Import Regulations for Horses; Technical Amendments” (Apr. 8, 2024)
Environmental Protection Agency
89 FR 25531 Rule—Comment Period: “Silane, Hexadecyltrimethoxy-, Hydrolysis Products with Silica in Pesticide Formulations; Pesticide Tolerance Exemption” (Apr. 11, 2024)
89 FR 24758 Proposed Rule—Comment Period: “Mercury Criterion to Protect Aquatic Life in Idaho” (Apr. 9, 2024)
89 FR 24824 Notice: “Polychlorinated Biphenyls (PCBs); TSCA Section 21 Petition for Rulemaking Under TSCA Section 6; Reasons for Agency Response; Denial of Requested Rulemaking” (Apr. 8, 2024)
U.S. Codex Office
89 FR 25230 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Pesticide Residues” (Apr. 10, 2024)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.6011 “ROWATA Act [This bill requires the Department of the Interior and the Department of Agriculture to notify applicants for a right-of-way on certain public lands if their application is complete or deficient.]” Motion to reconsider laid on the table Agreed to without objection. (Apr. 11, 2024)
H.R.7923 “To limit USDA funding for ground-mounted solar energy systems, and for other purposes” Referred to the House Committee on Agriculture. (Apr. 10, 2024)
H.R.7920 “To amend the Agricultural Research, Extension, and Education Reform Act of 1998 to direct the Secretary of Agriculture to establish a program under which the Secretary will award competitive grants to eligible entities for the purpose of establishing and enhancing farming and ranching opportunities for veterans.” Referred to the Committee on Agriculture. (Apr. 10, 2024)
H.R.6492 “EXPLORE Act [To improve recreation opportunities on, and facilitate greater access to, Federal public land, and for other purposes.]” Received in the Senate. (Apr. 10, 2024)
H.R.7900 “To establish a regulatory review process for rules that the Administrator of the Environmental Protection Agency plans to propose, and for other purposes.” Referred to the Committee on Agriculture. (Apr. 9, 2024)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.4099 “A bill to increase the capacity, resiliency, diversity, and security of the United States food supply chain by codifying and expanding the Food Supply Chain Guaranteed Loan Program.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 10, 2024)
S.1867 “Expanding Childcare in Rural America Act of 2023” Committee on Small Business and Entrepreneurship. Hearings held. (Apr. 9, 2024)
S.4081 “A bill to amend the Federal Crop Insurance Act to provide premium support for certain plans of insurance, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Apr. 9, 2024)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
DEP Issues $1.1 Million Civil Penalty to Equitrans for Violations Related to Rager Mountain Gas Release (Apr. 9, 2024)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 15—Apr. 13, 2024):
Department of Agriculture
54 Pa.B. 1957 Notice: “The Resilient Food Systems Simplified Equipment-Only Grant Program; 2024 Application Period; Correction”
Department of Environmental Protection
54 Pa.B. 1959 Notice: “Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits Under the Clean Streams Law and Federal Clean Water Act”
Fish and Boat Commission
54 Pa.B. 2045 Notice: “Lake Erie Commercial Fishing—2024”
54 Pa.B. 2046 Notice: “Lake Erie Creel Limits for Walleye and Yellow Perch—2024”
Susquehanna River Basin Commission
54 Pa.B. 1953 Proposed Rule—Comment Period: “Review and Approval of Projects”
PENNSYLVANIA LEGISLATURE
SB 979 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in domestic animals, providing for posted notice with information on dangerous transmissible diseases.” Removed from table. (Apr. 10, 2024)
Contributors:
Victoria Dutterer—Research Assistant
Lonzie Helms—Research Assistant
Esther Thomas—Research Assistant
Audry Thompson—Staff Attorney
