Agricultural Law Weekly Review – January 30, 2020

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:
Sara LaJeunesse, Insecticides becoming more toxic to honey bees (January 21, 2020).
Victoria M Indivero, A new way to research water (January 15, 2020).

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 Invests $15.5 Million in Broadband for Rural Louisiana Communities (January 28, 2020).
USDA Invests $61 Million to Bring Broadband to Rural Missourians (January 28, 2020).
USDA to Open the Application Window for the Second Round of ReConnect Program Funding Friday (January 27, 2020).
United Nations Declares 2020 as the International Year of Plant Health (January 27, 2020).
Secretary Perdue Statement on EPA WOTUS Rule (January 23, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices:
Department of Agriculture
50 Pa.B. 548 “General Quarantine Order; Swine Exhibition Requirements” Notice (January 25, 2020).
50 Pa.B. 550 “Interstate and International Quarantine Order—Swine Exhibition Requirements” Notice (January 25, 2020).

Department of Environmental Protection
50 Pa.B. 554 “The Clean Streams Law And The Federal Clean Water Act:
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
50 Pa.B. 629 “Wastewater Service” Notice

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 4191 “Beef Promotion and Research Rules and Regulations” Rule (January 24, 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
85 FR 4191 “Agricultural Conservation Easement Program” Rule—Comments (January 24, 2020).

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 5006 “Changes in Flood Hazard Determinations” Notice (January 28, 2020).
85 FR 5001 “Proposed Flood Hazard Determinations” Notice—Comment Period (January 28, 2020).
85 FR 5003 “Proposed Flood Hazard Determinations” Notice—Comment Period (January 28, 2020).
85 FR 5004 “Agency Information Collection Activities: Submission for OMB Review; Comment Request; Public Assistance Program” Notice—Comment Period (January 28, 2020).
85 FR 3548 “Suspension of Community Eligibility [Texas, Kansas, Missouri]” Rule (January 22, 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 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).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks
January 22-28, 2020 Top Tweets:
EPA replaces WOTUS with new Navigable Waters Protection Rule (January 23, 2020)
Grassley Anticipates Trump Wotus Rule Shortly (January 22, 2020)
Brazil poised to overtake U.S. as leading soybean producer (January 22, 2020)
Report finds US meat recalls have increased by 65 percent since 2013 (January 22, 2020).
Study: Spotted lanternfly costing Pennsylvania $50M annually (January 20, 2020).
Kansas City Fed: Farm Lending Declines For a Second Consecutive Quarter (January 21, 2020).
Tyson Foods initiates global sustainable protein coalition (January 21, 2020).
Horsemeat scam shows weak links in food chain: Traceability, controls, sanctions and transparency must be improved (January 22, 2020)
UPenn studies climate change through dairy cows (January 21, 2020)

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Written by:
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant