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:
WOTUS: Members of Congress File Amicus Brief Opposing EPA and Army Corps of Engineers Final Rule
On November 8, 2016, twenty-one members of the U.S. Senate and sixty-seven members of the U.S. House of Representatives filed an amicus brief with the Sixth Circuit Court of Appeals calling for the court to vacate the Environmental Protection Agency and the Army Corps of Engineers final Waters of the United States (WOTUS) rule to redefine the Federal Water Pollution Control Act’s term “navigable waters” (Murray Energy Corp., et al. v. U.S. Environmental Agency, et al., Case:15-3751 Document: 138). According to the brief, “the Agencies are encroaching on traditional state authorities over land use and water quantity (as opposed to water quality), contrary to the clear text and intent of the [Federal Water Pollution Control Act] 1972 Amendments, its legislative history, and the Supreme Court’s decision in SWANCC, which warned that such an attempt to expand agency jurisdiction should receive no judicial deference.”
Right to Farm: Oklahoma Voters Reject Constitutional Amendment
On November 8, 2016, Oklahoma voters defeated a proposal to amend the state constitution to include the right to farm and ranch (State Question 777). The defeated proposed amendment would have provided Oklahoma’s farmers and ranchers with a guarantee right to make use of: (1) agricultural technology; (2) livestock procedures; and (3) ranching practices. According to the opponents of State Question 777, the amendment “would [have been] used to prevent the state and local governments from passing laws to protect small farmers and provide reasonable regulations regarding food and water quality, environmental protections, and animal cruelty…[and] would [have] give[n] large, corporate farms an advantage over small, local farms.”
Labeling: USDA Announces Nutrition Facts Label Compliance
On November 16, 2016, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published a notice in the Federal Register entitled: Nutrition Facts Label Compliance (81 FR 80631). According to FSIS, the agency is currently in the process of rulemaking to update the Nutrition Facts label format for meat and poultry products. Until the final rule is published, FSIS stated that “establishments may voluntarily choose to use the Nutrition Facts label format that the Food and Drug Administration (FDA) recently finalized (“Food Labeling: Revision of the Nutrition and Supplement facts labels”, May 27, 2016; 81 FR 33742; and “Food Labeling: Serving Sizes of Foods That Can Reasonably be Consumed at One-Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments”; May 27, 2016; 81 FR 34000).” According to FSIS, “[a]s long as the information on the labels is still truthful and not misleading, FSIS will not find noncompliance if companies use the FDA format.”
Water: NRCS Announces Availability of Soil Erodibility System Calculations
On November 17, 2016, the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) published notice in the Federal Register entitled: Notice of Implementation of the Water Erosion Prediction Project (WEPP) Technology for Soil Erodibility System Calculations for the Natural Resources Conservation Service (81 FR 81053). According to NRCS, the notice announces “the intention of NRCS to implement the WEPP technology to replace the use of the Revised Universal Soil Loss Equation, Version 2 (RUSLE2), where applicable.” The comment period regarding the proposed change closes December 19, 2016.
Pesticides: EPA Revises Chlorpyrifos Health Risks
On November 10, 2016, the United States Environmental Protection Agency (EPA) announced that the agency has revised its analysis of the human health risks from chlorpyrifos. According to EPA, “[t]he revised analysis indicates that expected residues of chlorpyrifos on most individual food crops exceed the “reasonable certainty of no harm” safety standard under the Federal Food, Drug, and Cosmetic Act (FFDCA). As a result, “EPA is announcing and inviting comment on additional information obtained and developed by EPA in conjunction with the proposed tolerance revocation for chlorpyrifos.”
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