February 25, 2024
Agricultural Law Weekly Review—February 26, 2024
Explore the Center’s updated Waters of the United States Virtual Resource Room and Waters of the United States Issue Tracker!
Water Quality: Federal Court Vacates EPA, FWS Actions Allowing Florida to Assume Clean Water Act Wetland Authority 🌾
On February 15, 2024, the U.S. District Court for the District of Columbia issued an opinion granting summary judgment to the plaintiff environmental group and vacating the U.S. Fish and Wildlife Service’s (FWS) November 2020 “programmatic” biological opinion (BiOp) and incidental take statement (ITS), which supported the U.S. Environmental Protection Agency’s (EPA) December 2020 approval of Florida’s assumption of Clean Water Act Section 404 wetlands authority but was not published for public comment (EPA-HQ-OW-2018-0640; 85 FR 83553). Ctr. Biological Diversity v. Andrew Wheeler, No. 1:21-cv-00119. According to the opinion, in September 2020, “Florida proposed something novel: It sought to confer . . . broad [Endangered Species Act (ESA)] liability protection on all future state permittees for incidental take resulting from state-issued dredge and fill permits. The agency action under review would be the EPA’s approval of Florida’s assumption application, and the FWS would issue a ‘programmatic’ BiOp finding no jeopardy followed by a ‘programmatic’ ITS that would protect all future state Section 404 permittees.” The plaintiffs alleged that “FWS acted beyond its authority in purporting to make a ‘no jeopardy’ finding and in conferring blanket ESA immunity on all future Florida Section 404 permittees” and that “the BiOp and ITS seek to attain an unlawful goal—that is, take liability protection premised on something other than the rigors of Section 7 or Section 10 of the ESA.” The court found that EPA’s and FWS’s actions violated the ESA and the Administrative Procedure Act, stating, “the Court is persuaded that the FWS’s programmatic BiOp and ITS fail to satisfy the requirements of the ESA, and the Court is unpersuaded that the non-statutory technical assistance process is a lawful substitute for the procedures and remedies that Congress enacted in the ESA and that the Services established in the implementing regulations.”
Water Quality: Farmers File Complaint Against Oregon CAFO Interpretation Classifying ‘Milking Process’ as ‘Confinement’
On January 23, 2024, four small dairy farmers filed a complaint in the U.S. District Court for the District of Oregon challenging the Oregon Department of Agriculture’s (ODA) interpretation of the state’s definition of “confined animal feeding operation” (CAFO) (Or. Admin. R. 603-074-010(3)) to include small milking operations that are typically exempt from the state’s food safety and fluid milk license requirements (See Or. Rev. Stat. § 621.012). King v. Hanson, No. 3:24-cv-00152. According to a January 2023 whitepaper published by ODA, “all animals are technically confined during the milking process, whether in pens, lots, or buildings.” As such, the complaint states that “the mere act of milking an animal—in a sheltered location or on a prepared surface—constitutes confinement for purposes of triggering the law’s requirements” and requires a producer to obtain a CAFO permit. The plaintiff dairy farmers, who state that they milk between two and nine animals per day, allege that these requirements are “impermissibly overinclusive” and violate the Fourteenth Amendment’s Equal Protection and Substantive Due Process Clauses. ODA has yet to reply to the complaint.
Water Quality: Nevada Supreme Court Upholds State Engineer Authority to ‘Conjunctively Manage Surface Waters with Groundwater’
On January 25, 2024, the Supreme Court of Nevada issued an opinion holding that, under NV Rev Stat §533.085, the State Engineer possesses “statutory authority to conjunctively manage surface waters with groundwater.” Sullivan v. Lincoln County Water Dist., No. 84739. In June 2020, the State Engineer issued Order 1309, which “determined that the waters of seven basins were interconnected in a manner such that withdrawals from one basin affected the amount of water in the other basins” and “combined those basins, for administration purposes, into one superbasin.” Additionally, the State Engineer “found that permitted groundwater pumping from that flow system may reduce the amount of water available to parties with vested surface rights, including rights to waters from the Muddy River, a vital source of water for Las Vegas” and “determined that no more than 8,000 [acre-foot per annum (afa)], and perhaps less, could be appropriated from the flow system without affecting the vested rights and other public interests.” In a challenge to Order 1309 from water rights owners from the “superbasin,” the court upheld the order stating, “If statutory rights holders deplete groundwater resources such that the flow of water to the elevated springs that feed the Muddy River is reduced to the point of impairing vested rights, then the State Engineer has the authority to invoke NRS 533.085 to protect vested rights.” The court further stated, “We likewise decline to hold that . . . [the law] solely applies within a single previously delineated basin and cannot extend across multiple basins regardless of the location of the supply of water. Without this authority, junior rights holders could deplete the shared water resource according to their local priority and previously granted appropriation, regardless of the impact such appropriation has on vested rights holders outside of the local basin. This result would be contrary to both [the law] and the prior appropriation doctrine because it could impair the most senior prestatutory vested rights that rely on this supply of water.”
Pesticides/Herbicides: EPA and USDA Sign MOU to Coordinate Pesticide Use Conservation Measures
On February 6, 2024, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) signed a memorandum of understanding (MOU) establishing a relationship between the agencies to reference and utilize conservation practices defined by the Natural Resources Conservation Service (NRCS) to comply with pesticide label requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). Also announced by EPA, the MOU “working relationship will also consider pesticide users who voluntarily follow NRCS conservation practice standards” and allow “users . . . [to] count those measures toward meeting pesticide labeling requirements.”
Antitrust: Federal Court Approves DOJ Settlement with Koch Foods Over Contract Termination Penalty Fees
On February 12, 2024, the U.S. District Court for the Northern District of Illinois entered a final judgment order approving a settlement between the U.S. Department of Justice (DOJ) and Koch Foods, Inc. United States v. Koch Foods, No. 1:23-cv-15813. Reached by the parties in November 2023, the agreement prohibits Koch from “demand[ing], request[ing], collect[ing] or accept[ing] any Termination Payment,” and requires Koch to “repay all Termination Payments that [Koch] has received and has identified to [the Packers and Stockyards Division] and the Antitrust Division” as of February 12, 2024. Additionally, Koch must send written notice to each independent poultry grower that had a termination payment obligation in their Live Poultry Agreement with Koch Foods. For background, see ALWR—Nov. 20, 2023, “DOJ Files Complaint, Proposed Consent Decree to Prohibit Koch Foods’ Contract Termination Penalty Fees.” See also the Center’s Agricultural Antitrust Issue Tracker.
International Trade: United States Requests USMCA Review of Alleged Workers’ Rights Denial at Mexican Guacamole Company
On February 16, 2024, the Office of the U.S. Trade Representative (USTR) announced that the office had formally requested under the United States-Mexico-Canada Agreement (USMCA) that “Mexico conduct a review of whether a Denial of Rights is occurring to workers at RV Fresh Foods, S.A. de C.V. in Uruapan, Michoacán, Mexico,” which the office requested in response to a petition to the Interagency Labor Committee for Monitoring and Enforcement (ILC). According to the request, in January 2024, ILC received a petition from Mexican union groups alleging that the guacamole production company “interfere[d] with workers’ union activities, including denying the union’s request to access the facility, intervening in the union delegate selection process, granting access to a representative from a union that does not represent the workers, and failing to provide workers with a written copy of the collective bargaining agreement in a timely manner.” According to the announcement, the “United States has suspended liquidation of tariffs on goods from the facility” and, during the investigation, will halt “the liquidation [of] all unliquidated entries of goods produced” at RV Fresh Foods. USMCA procedure allows Mexico ten days to agree to the request, and forty-five days from the request date to complete its investigation.
Agricultural Labor: DOL Appeals Board Allows Farm to Change H-2A Workers’ Season
On February 9, 2024, the U.S. Department of Labor (DOL) Office of Administrative Law Judges (OALJ) issued a decision and order reversing a denial of certification of Mitchell Farms’s H-2A application. Matter of Mitchell Farms Partnership, No. 2024-TLC-00017 (See DOL case search). The Certifying Officer (CO) denied Mitchell Farms’s application because the Kentucky farm had previously requested temporary workers from March to January but, for 2024, requested temporary workers from February to December. In the original denial, the CO stated that the change in the request indicated that “the employer’s need for workers does not appear to be tied to a certain time of year by an event or pattern.” The OALJ reversed the CO’s decision, writing, “the Employer has shown that it needs more workers during certain months of the year . . . than in others. Specifically, Mr. Mitchell testified that the Employer does not need temporary laborers in December or January, and therefore, the Employer’s need is not permanent or year-round. The Employer’s change in seasonal dates of need based on the need for temporary labor during pre-planting instead of the post-harvest period is reasonable and consistent with the record.” The matter is remanded to the CO for “further consideration in accordance with this Decision and Order.” See also the Center’s H-2A Program Issue Tracker.
Marketing Orders: USDA to Hold Referendum to Continue National Peanut Program
On February 20, 2024, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a proposed rule (89 FR 12758) announcing that the agency will conduct a referendum of eligible U.S. peanut producers April 8–19, 2024 “to determine whether they favor continuance of the [AMS] regulations regarding a national peanut research and promotion program.” Also announced by AMS, producers “engaged in the production and sale of peanuts at the time of the referendum and during the representative period of Jan. 1–Dec. 31, 2022, are eligible to vote.” AMS states, “The order will continue if it is favored by a majority of producers voting in the referendum.”
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CENTER PROGRAMS & RESOURCES
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:
- Mar. 22, 2024, Understanding the Basics of Organic Production
- Apr. 26, 2024, Understanding the Basics of Producer Protections for Buyer Default
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. 16, 2024, Overview of U.S. State Milk Pricing Systems
On-Farm Negligence, Gross Negligence & Liability Issues
- Mar. 2, 2024, 9:00–2:00pm. Staff Attorney Brook Duer presents at Eastern Snyder County’s Child Safety Awareness Meeting.
ACRE Law 101: Agriculture, Local Regulations, and Nutrient Management
- Mar. 6, 2024, 9:00 am–1:00 pm. In-person at US Hotel Tavern, Hollidaysburg, PA. Free PDH Engineering, Nutrient Management, and CLE credits available, lunch provided.
Legal Considerations for Agritourism Operations
- Mar. 6, 2024, 8:30am–1:00pm. Staff Attorney Jackie Schweichler presents at “Agritourism and On-Farm Markets & Events: Planning for Your Success in 2024.”
Legal and Tax Structures for Business and Land Ownership
- Mar. 9, 2024. Staff Attorney Brook Duer presents at “Beginning Farmer Intensive: Land, Law, and Transition.”
Exploring Succession and Estate Planning: A Panel Discussion
- Mar. 15, 2024. 2:00–4:00pm. Staff Attorney Brook Duer presents “Pros and Cons of Various Transition Methods/Tools” with the panel.
Podcasts:
Agricultural Law Podcast
Dicamba Registrations Vacated Again (Feb. 19, 2024)
California’s Proposition 12 Finally Fully Effective (Feb. 13, 2024)
EPA Proposes More Stringent Meat and Poultry Processing Plant Effluent Discharge Standards (Jan. 24, 2024)
EPA’s Response to Federal Court’s Decision on Chlorpyrifos Use (Jan. 19, 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:
Ohio St. Univ. Ext. Farm Off. Blog, New Independent Contractor Rule Coming Soon!, Jeffrey Lewis (Feb. 16, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, EPA Issues “Existing Stocks” Order for Over-the-Top Dicamba Use, Peggy Kirk Hall (Feb. 15, 2024)
Nat’l Agric. Law Ctr., The Deal With Dicamba: Court Vacates Over-the-Top Registration, Brigit Rollins (Feb. 15, 2024)
Southern Ag Today, Farm Bill Fault Lines: Why is the Farm Bill Debate Stuck in Neutral?, Bart Fischer (Feb. 15, 2024)
Nat’l Agric. Law Ctr., Agritourism: Reducing Liability Risk During Solar Eclipse Activities, Rusty Rumley (Feb. 14, 2024)
Univ. Md. Risk Mgmt. Educ. Blog, Updated: Back in a Wait-and-See Mode With Recent Dicamba Ruling, Paul Goeringer (Feb. 14, 2024)
Southern Ag Today, Where are the Girls?, Andrew Griffith (Feb. 13, 2024)
Nat’l Agric. Law Ctr., FAIR Labels Act of 2024, Emily Stone (Feb. 13, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, Dicamba’s future is uncertain, again, Peggy Kirk Hall (Feb. 12, 2024)
Agric. Law & Tax’n Blog, The Big Issues for 2024, Roger McEowen (Feb. 11, 2024)
Nat’l Agric. Law Ctr., U.S. Department of Labor Finalizes Independent Contractor Rule, Samantha Capaldo (Feb. 8, 2024)
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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
Agriculture and Interior Departments Propose Changes to Strengthen Alaska Tribal Representation on Federal Subsistence Board (Feb. 15, 2024)
USDA Releases Updated Equity Action Plan (Feb. 14, 2024)
Biden-Harris Administration Invests $20M for Indigenous Communities to Access Emerging Climate Markets as part of Investing in America Agenda (Feb. 14, 2024)
Agriculture Secretary Vilsack Statement on the Release of the 2022 Census of Agriculture (Feb. 13, 2024)
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
Biden-Harris Administration expands EPA program to bring wastewater sanitation services to 150 more underserved communities across Rural America (Feb. 15, 2024)
EPA and DOJ Settlement Will Address Problems at Toa Alta Landfill (Feb. 13, 2024)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Partners with Georgia to Award $7.1 Million to Strengthen Food Supply Chain Infrastructure (Feb. 14, 2024)
USDA Issues a Packers and Stockyards Complaint against Indiana Halal Farms LLC (Feb. 13, 2024)
USDA Settles a Packers and Stockyards Case with Cargill Meat Solutions Corporation (Feb. 13, 2024)
Animal and Plant Health Inspection Service (APHIS)
USDA Reminds the Public About Animal Welfare Act Regulations for Birds (Feb. 15, 2024)
Economic Research Service (ERS)
USDA Agricultural Projections to 2033 (Feb. 14, 2024)
Food and Nutrition Service (FNS)
FNS Awards Grants to Support Emergency Food System and Agricultural Producers (Feb. 12, 2024)
Foreign Agricultural Service (FAS)
Biden-Harris Administration Prioritizes Agricultural Trade (Feb. 14, 2024)
Food for Progress Program – FY 2022 Report to Congress (Feb. 13, 2024)
Forest Service
USDA invests $20M for Indigenous communities to access emerging climate markets as part of Investing in America agenda (Feb. 14, 2024)
National Agricultural Statistics Service
USDA releases 2022 Census of Agriculture data (Feb. 13, 2024)
Natural Resources Conservation Service (NRCS)
Ag Land Conservation Easements with NRCS & Entities (Feb. 15, 2024)
Application Deadline for EQIP-CIC (Feb. 14, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register Feb. 12-16, 2024):
Agricultural Marketing Service
89 FR 9834 Notice—Comment Period: “Notice of Availability of the Draft Programmatic Environmental Assessment for AMS Resilient Food Systems Infrastructure Program” (Feb. 12, 2024)
Agriculture Department
89 FR 12302 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): Agricultural Surveys Program]” (Feb. 16, 2024)
89 FR 11809 Notice: “Submission for OMB Review; Comment Request [Rural Business-Cooperative Service: Voluntary Labeling Program for Biobased Products]” (Feb. 15, 2024)
89 FR 11809 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Recordkeeping for Employment and Training Program Activity Report and Requests for Additional 100 Percent Funding]” (Feb. 15, 2024)
89 FR 11247 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: CCC EXPORT CREDIT GUARANTEE PROGRAM (GSM–102)]” (Feb. 14, 2024)
89 FR 11247 Notice: “Submission for OMB Review; Comment Request [Foreign Agricultural Service: Pima Agriculture Cotton Trust Fund]” (Feb. 14, 2024)
Environmental Protection Agency
89 FR 12248 Rule: “Toxic Substances Control Act (TSCA) Requirements for Polymer Exemption Reports and Accompanying Claims; Extension of the Reporting Deadline for 2024” (Feb. 16, 2024)
89 FR 12244 Rule: “Approval of State Plans for Designated Facilities and Pollutants; MO; Approval and Promulgation of Implementation Plans; Control of Emissions from Existing Municipal Solid Waste Landfills” (Feb. 16, 2024)
89 FR 11829 Notice—Comment Period: “Draft Approach for Implementation of the EPA Label Program for Low Embodied Carbon Construction Materials; Notice of Availability, Webinar and Request for Comment” (Feb. 15, 2024)
Food Safety and Inspection Service
89 FR 11810 Notice: “National Advisory Committee on Microbiological Criteria for Foods: Committee and Charter Renewal” (Feb. 15, 2024)
Rural Business-Cooperative Service
89 FR 11811 Notice—Comment Period: “60-Day Notice of Proposed Information Collection: Rural Microentrepreneur Assistance Program (RMAP); OMB Control No.: 0570-0062” (Feb. 15, 2024)
U.S. Codex Office
89 FR 10021 Notice: “Codex Alimentarius Commission: Meeting of the Codex Committee on Food Additives” (Feb. 13, 2024)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.7391 “To require the Secretary of Agriculture to carry out a study and research and demonstration on agrivoltaic systems and to issue guidance on best practices for protection of soil health and productivity during the siting, construction, operation, and decommissioning of solar energy systems on agricultural land.” Referred to the House Committee on Agriculture. (Feb. 15, 2024)
H.R.7362 “To establish cooperative agreements for wildland fire research, and for other purposes.” Referred to the House Committee on Agriculture. (Feb. 15, 2024)
H.R.7264 “Stop Politicians Profiting from War Act of 2024” Sponsor introductory remarks on measure. (Feb. 15, 2024)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
No New Action.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
DEP To Host Public Hearing on Proposed Warehouse Project in Monroe County (Feb. 14, 2024)
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 6—Feb. 10, 2024):
Department of Environmental Protection
54 Pa.B. 621 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. 700 Notice: “Changes to List of Class A Wild Trout Waters”
54 Pa.B. 700 Notice: “Classification of Wild Trout Streams; Additions and Revisions; January 2024”
State Conservation Commission
54 Pa.B. 703 Notice: “Access to Nutrient Management Plans, under Review and Acted upon by the State Conservation Commission, for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Nutrient Management Program”
54 Pa.B. 704 Notice: “Action on Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program”
54 Pa.B. 704 Notice: “Access to Odor Management Plans for Concentrated Animal Operations and Concentrated Animal Feeding Operations and Volunteers Complying with the Commonwealth’s Facility Odor Management Program”
PENNSYLVANIA LEGISLATURE
HB 2022 “An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, in development, further providing for well permits.” Referred to ENVIRONMENTAL RESOURCES AND ENERGY. (Feb. 9, 2024)
HB 316 “A Resolution designating September 18, 2024, as “State Grange Day” in Pennsylvania and celebrating the Pennsylvania State Grange on its 151st anniversary.” Referred to AGRICULTURE AND RURAL AFFAIRS. (Feb. 7, 2024)
SB 1058 “An Act providing for the abrogation of regulations relating to the CO2 Budget Trading Program.” Second consideration. (Feb. 6, 2024)
SB 832 “An Act amending Title 71 (State Government) of the Pennsylvania Consolidated Statutes, in boards and offices, establishing the Independent Energy Office.” Re-reported as committed. (Feb. 5, 2024)
Contributors:
Victoria Dutterer—Research Assistant
Lonzie Helms—Research Assistant
Esther Thomas—Research Assistant
Audry Thompson—Staff Attorney
