Last Week in Agriculture and Natural Resource Law (May 2, 2020)

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[This is a weekly posting summarizing (and yes, some aggregating) legal developments – case decisions, new statutes and regulations, policy changes – of the past week in the realm of agricultural, natural resource, and environmental law. Also included are updates on upcoming Cooperative Extension programs of relevance to land and agribusiness law. To sign up for emails, please hit the “subscribe” link over on the right of this article.]

The Coronavirus Food Assistance Program (CFAP) Direct Payment Regulations (Still Waiting). As of May 2, we are still awaiting the USDA’s interim rules on the direct farmer payment portion of the CFAP program. This program, announced on April 17, is a $19 billion effort to assist farmers in the Covid-19-era decline in prices. The package is bifurcated into two programs, with $16 billion in direct payments to farmers, and $3 billion distributed through a family food box distribution program. The latter has received rule-making and an application (due on this date, May 1 actually) for the program to proceed. Successful applicants will be notified May 7. Details on the program can be found in our piece. As noted above, rules on the direct payments have not been issued, so expect to get an updated summary when those are released.

Department of Labor Issues H-2A Interim COVID-19 Rule. The Department of Homeland Security (DHS) has published a temporary final rule (effective April 20 to August 18, 2020) to extend employment of workers who have been in the U.S. – without a three month uninterrupted absence – are are working under a three year extended stay in the U.S. The rule  allows employers flexibility to hire H-2A workers already in the U.S. to permit free flow of such labor. To do so the prospective employer files Form I-129 along with the prospective employee’s temporary labor certification, up through August 18, 2020. DHS is now to allow H-2A workers to immediately extend their stay upon DHS receipt of the employer’s application (provided the employer is in good standing with Department of Labor’s E-verify system).

Plant Closures in the Integrated Meat System. Due to plant closures by Smithfield and other meat processing plants, and the resulting “bottleneck” such closure place on producers with animals at or approaching slaughter weight, President Trump has issued an Executive Order – pursuant to the Defense Production Act – that such processing plants remain open. The processing plants have closed in several locations around the United States due to outbreaks of Covid-19 among the workers in those facilities. The closures have left producers – producing hogs on contract with such facilities – facing the difficult decision of euthanizing their hogs that grow beyond the facilities’ specified slaughter weight.

Supreme Court Rules in County of Maui v. Hawaii Wildlife Fund, et al.  On April 23 the United States Supreme Court issued its much-anticipated opinion in the case of County of Maui, Hawaii v. Hawaii Wildlife Fund et al. In a 6-3 opinion, the majority held that direct discharges from point sources into groundwater that conveys pollutants to Waters of the United States (WOTUS) are regulated under the Federal Water Pollution Control Act (Clean Water Act), and thus require permitting under point source regulations. The issue before the Court – whether the Clean Water Act “requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source” – concerned the injection of wastewater by Maui County’s wastewater treatment facility into the groundwater, which then conveyed that wastewater into the ocean, considered a jurisdictional water under the Clean Water Act. Based on the facts of the case – where the injection into groundwater results in a provable discharge into WOTUS – the Court developed the functional equivalent of a direct discharge rule. The case settles a split of authority between our own Fourth Circuit on the issue and the Sixth Circuit (both concerning coal ash leakage), and potentially opens up a new level of attack on operations normally exempt as discharging (or leaking) into groundwater which then surfaces in jurisdictional water when the facts support such traceability. The County of Maui decision will be explored further in an upcoming piece.

Navigable Water Rule:  North Caroline Joins States in Lawsuit Against Environmental Protection Agency.  North Carolina has joined 16 other states in a lawsuit filed in the Federal District Court for Northern California, challenging the new Navigable Waters Rule recently finalized by the Environmental Protection Agency (EPA). The rule – a reformation of the expanded Clean Water Act authority under the EPA’s 2015 rule – removed a formerly jurisdictional wetlands, ditches, and other water features from the Clean Water Act’s requirement of a §404 permit to alter such features.

Collaborative Farming Program Recordings Available (soon).  North Carolina Cooperative Extension hosted two online programs on April 27 and April 30, focusing on collaborative farming and aggregation models. At a time when food consumers – and some farmers – are starting to process stories about disruptions in the extended food chain, many are taking a new look at local distribution systems. This program takes a look at several aggregation models, including food hubs that distribute weekly product orders to customers through online ordering. The webinar recordings of these programs will be released soon.