Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22

Posted February 18, 2016

Agriculture in the Mid-South is uniquely impacted by changes and developments in state, federal, and international laws and policies. Hosted by the Agricultural & Food Law Consortium, the Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22 in Memphis, TN, is part of a long-term effort to provide relevant and timely agricultural and environmental legal research and information to attorneys, lenders, accountants, tax consultants, students and other agricultural professionals involved in the agriculture and aquaculture industries in the southern U.S.   

Conference highlights and panel discussions include:

- Agricultural & Environmental Law Updates

- Managing Risk in a Faltering Ag Economy

- Handling an Ag Bankruptcy

- Navigating Wetlands Issues

- Legal Issues & Liability in Agricultural Nutrient Management

This year's program is approved for six hours of CLE credit in Alabama, Mississippi, and Tennessee, including one hour of ethics. Further, it has been submitted for CLE credit in Arkansas and for real estate continuing education in Arkansas.

The conference kicks off Thursday, April 21, with a “BBQ & Beer” reception at Memphis' famous Rendezvous barbecue restaurant. 

To register for the conference, please click here. 

Court rules on agency interpretation of statutes regarding incidental take

Posted February 16, 2016

 

A U.S. District Court in Puerto Rico has determined that the Endangered Species Act does not require agencies to monitor incidental take in every location where take occurs. Critically, the court concluded that it can only interfere with an agency’s interpretation of a statute if that interpretation is unreasonable.

In Center for Biological Diversity v. National Marine Fisheries Service (NFMS), plaintiffs challenged a recent NFMS Biological Opinion concluding that the incidental take on elkhorn and staghorn coral, resulting from continued fishing levels for parrotfish and surgeonfish, would not jeopardize their existence or impact their habitat in the U.S. Caribbean. The coral are a “threatened species” under the Endangered Species Act (ESA).

The U.S. Fish & Wildlife Service issues incidental take permits to private, non-federal entities undertaking projects that might result in the take of an endangered or threatened species. Per the ESA, 'take' means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Application for incidental take permits is subject to certain requirements, including preparation of a conservation plan by permit applicants.

In this case, NMFS argued that it could use its monitoring results in St. Croix as a proxy for its take requirements in Puerto Rico and St. Thomas/St. John. Plaintiffs argued, on the other hand, that the Revised Incidental Take Statement omitting monitoring requirements in St. Thomas/St. Johns and Puerto Rico violated the Endangered Species Act.

The court found that NMFS's use of St. Croix as a proxy for the Puerto Rico and St. Thomas/St. John areas was reasonable despite plaintiffs’ contention that their method was not representative of coral populations elsewhere. The court determined that although NFMS’s decision to use St. Croix as a proxy was arbitrary, plaintiffs were unable to prove that St. Croix was an inadequate proxy for the rest of the U.S. Caribbean. Furthermore, the court found that plaintiffs did not offer legal authority supporting their theory that the Endangered Species Act requires monitoring incidental take “in every location where take occurs.”

The court also concluded that given the statutory and regulatory silence regarding the monitoring required of locations where incidental take occurs, they must defer to the agency's interpretation and may only interfere when it is unreasonable. In reaching this conclusion, the court cited Biodiversity Legal Found.v. Babbitt, 146 F.3d 1249, 1253 (10th Cir. 1998) which stated, “A challenge to an agency construction of a statutory provision must fail if, in light of Congress' ambiguity or silence, the agency's action ‘is a reasonable choice.’” 

(Image courtesy pixabay.com)

Federal regulations issued for large-scale fish farming

Posted January 21, 2016

The first-ever federal regulations for large-scale fish farming in the ocean were recently issued, opening a new frontier in the harvesting of popular seafood species such as red drum, tuna and red snapper.

The new rules allow the farming of fish in federal waters of the Gulf of Mexico. The rules were announced in New Orleans by the National Oceanic and Atmospheric Administration.

NOAA Administrator Kathryn Sullivan said the Gulf rules could spur similar rules in other U.S. waters. She said it was time for the United States to open up this new market, which could help the U.S. meet its seafood demands.

Fish farming, however, is contentious, with fishermen and environmentalists warning it can harm the marine environment and put fishermen out of work.  Opponents maintain that the Gulf of Mexico has changed significantly, with the effects on fisheries, habitat and communities from hurricanes such as Katrina in 2005, and the 2010 oil spill, all still emerging.

Opponents also contend industrial, open-ocean aquaculture can be environmentally damaging. Problems include the release of untreated waste, increased risks of diseases and parasites in wild fish by transmission from farmed fish and escapes of farmed fish altering wild populations. Furthermore, cages used to contain fish are flow-through, meaning anything from the pens can go directly into Gulf waters, including excess feed, fish wastes, and any chemicals. 

Typically, offshore farming is done by breeding fish in large semi-submersible pens moored to the seafloor. The practice is common in many parts of the world, and some feel the United States has fallen behind. About 90 percent of the seafood consumed in the United States is imported and more than half of that is farmed. 

The new rules allow up to 20 fish farms to open in the Gulf and produce 64 million pounds of fish a year. The farms can start applying for 10-year permits starting in February.

Sullivan said the fish farms would be kept away from sensitive habitats and fishermen would be allowed to fish near them. She envisioned little competition between the farms and fishermen.

More information is available here.

FDA approves genetically engineered salmon

Posted November 20, 2015

The FDA has approved AquaBounty Technologies’ application for AquAdvantage Salmon, an Atlantic salmon that reaches market size more quickly than non-genetically engineered (GE) farm-raised Atlantic salmon, according to the FDA’s press release here. The Washington Post also published an article available here and Reuters here.

The FDA regulates GE animals under the new animal drug provisions of the Federal Food, Drug, and Cosmetic Act, because the recombinant DNA (rDNA) construct introduced into the animal meets the definition of a drug. In this case, the rDNA construct introduces a trait that makes the AquAdvantage Salmon grow faster.  

“The FDA has thoroughly analyzed and evaluated the data and information submitted by AquaBounty Technologies regarding AquAdvantage Salmon and determined that they have met the regulatory requirements for approval, including that food from the fish is safe to eat,” said Bernadette Dunham, D.V.M., Ph.D., director of the FDA’s Center for Veterinary Medicine.

Five years ago, the FDA first declared the product, made by Massachusetts-based AquaBounty Technologies, to be as safe as conventional farm-raised Atlantic salmon, according to Reuters.

AquaBounty's product will not require special labeling because it is nutritionally equivalent to conventional farm-raised Atlantic salmon, the FDA said on Thursday.

AquaBounty developed the salmon by altering its genes so that it would grow faster than farmed salmon, and expects it will take about two more years to reach consumers' plates.

A Canadian governmental risk assessment issued in 2013 also looked at both safety and escapes, and they described the risk to human health as “low” and the risk to the Canadian environment as “negligible,” according to The Washington Post.

On both of those issues, there will always be some doubt. Safety can’t be proved (we can only infer it from absence of harm so far), and any containment system can fail. So the questions aren’t “Is it safe?” and “Could they escape?” The question is whether the risk in those two areas is outweighed by the benefits.

The FDA will maintain regulatory oversight over the production and facilities, and will conduct inspections to confirm that adequate physical containment measures remain in place. In addition, the Canadian and Panamanian governments will also be conducting inspections of the facilities, according to the FDA.

For more information on biotechnology, please visit the National Agricultural Law Center’s website here.

NOAA to Hold Nassau grouper Public Meeting

Posted November 24, 2014

The National Oceanic and Atmospheric Administration (NOAA) will hold a public hearing in St. Thomas, U.S. Virgin Islands, in December to hear public comments on the proposal to list the Nassau grouper (Epinephelus striatus) as threatened under the Endangered Species Act of 1973.

The meeting will be held on December 9, 2014, at 7 p.m. Atlantic Standard Time.

The Federal Register is available here.

NOAA Issues Five Rules Dealing with Marine Fisheries

Posted November 21, 2014

National Oceanic and Atmospheric Administration (NOAA) issued this final rule to implement management measures described in a framework amendment to the Fishery Management Plan for the Coastal Migratory Pelagic (CMP) Resources in the Gulf of Mexico and Atlantic Region (FMP) (Framework Amendment 1).

This final rule announced inseason changes to management measures in the Pacific Coast groundfish fisheries that is intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.

NOAA is prohibiting directed fishing for dusky rockfish in the Western Regulatory Area of the Gulf of Alaska (GOA) to prevent exceeding the 2014 total allowable catch of dusky rockfish in the Western Regulatory Area of the GOA.

NOAA is prohibiting directed fishing for Pacific ocean perch in the Western Regulatory Area of the Gulf of Alaska (GOA) to prevent exceeding the 2014 total allowable catch of Pacific ocean perch in the Western Regulatory Area of the GOA.

NOAA is prohibiting directed fishing for northern rockfish in the Western Regulatory Area of the Gulf of Alaska (GOA) to prevent exceeding the 2014 total allowable catch of northern rockfish in the Western Regulatory Area of the GOA.

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

 

Indiana Fish Feed Mill Creates Opportunities for Soybean Farmers

Posted July 10, 2014

A new fish feed mill is opening in Indiana that will utilize soybeans to feed the aquaculture industry across the Midwest, according to an Agri-News article available here. The Star Press also published an article available here and the Fish Site here.

The new Bell Farms feed mill in Albany will have the capacity to produce two million pounds of feed per month with soybean meal as a quality ingredient in most feeds.

“We congratulate Bell Farms in their commitment to producing sustainable, soy-based feeds here in Indiana,” said David Lowe, president of Indiana Soybean Alliance, the state’s soybean checkoff organization. “We believe a feed mill serving the aquaculture industry located within our state will not only benefit our state’s aquaculture producers by having a local source for quality feeds, but also our soybean farmers as it is another in-state market for our crop.”

The vertically integrated feed mill will include a 1000 metric ton fish farm, in-house processing facility, and production of products generated from capture and cultivation of byproducts, according to the Fish Site.

“A long time dream has been realized here today. I am very proud of our team, our partners and our community for working together to make this dream a reality and take this critical step toward providing a solution to our coming food deficit.” said Norman McCowan, president & CEO of Bell Aquaculture LLC.

Steven Craig, a nutritional biochemist and former associate professor at Virginia Tech, is the director of feed mill, and says that the process is similar to that of “dog food or Cocoa Puffs cereal,” according to the Star Press.

It consists of mixing ingredients, such as soybean meal and animal byproducts, grinding, extruding, drying, cooling, screening, oiling the pellets with fish oil, and bagging.

The feed will also be tailored to the nutritional, biological, and physiological needs of specific species at key points in the life cycle of the fish, according to the Fish Site.

For more information on aquaculture, please visit the National Agricultural Law Center’s website here.

Proposed Endangered Species Act Regulations Revise Protections for “Critical Habitat”

Posted May 27, 2014

The U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration’s (NOAA’s) National Marine Fisheries Service proposed two new rules and a policy related to their process of protecting and designating “critical habitat” for species under the Endangered Species Act (ESA), according to an article by JD Supra available here.  

Elizabeth Lake and Rafe Petersen of Holland & Knight LLP say the proposed rules “would radically change the regulatory definition and significance of ‘critical habitat,’ resulting in a considerable expansion of the impact of the ESA on private land.”

The first proposed rule would revise the definition of “adverse modification” of critical habitat.  The proposed rule responds to two court decisions that set aside the 1986 definition of “adverse modification.” 

The second proposed rule would amend the procedures related to designating “critical habitat.”  The rule would define the term “geographical area occupied by the species” as “the geographical area which may generally be delineated around the species’ occurrences, as determined by the Secretary (i.e., range).  Such areas may include those areas used throughout all or part of a species’ life cycle, even if not used on a regular basis (e.g. migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).”

The proposed policy aims to clarify how exclusions from “critical habitat” designation are considered, shifting to a case-by-case analysis and “focusing on conservation benefits both on the land and economics side.”

“Critical habitat” represents “the habitat essentials for a species’ recovery,” according to the agencies’ News Release is available here.

“Our goal in proposing these revisions is to make the process of designating and consulting on critical habitat more predictable, more efficient, and more easily understood,” said Gary Frazer, U.S. Fish and Wildlife Service Assistant Director for Ecological Services.  “We think these common-sense changes, reflecting lessons learned over the years, will improve conservation of species that need help and reduce the potential for conflicts and litigation.”

Elizabeth Ingram at Hydroworld said, here, “Hopefully, passage of these changes will, among other effects, shorten the time required for hydro projects to complete the endangered species consultation process during the Federal Energy Regulatory Commission licensing and relicensing process.”

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

USDA Meeting Ends with No Vote on Organic Aquaculture

Posted May 6, 2014

The spring meeting for the National Organic Standards Board (NOSB) ended with no vote on establishing approved substances for organic aquaculture standards, according to an article by Undercurrent News available here. 

During the meeting, the board voted to delay any vote on the approval of 10 substances as usable under the USDA organic standard until the final rule on aquaculture standards is published. 

George Lockwood, chairman of the Aquaculture Working Group (AWG) called the meeting “discouraging” in an update he sent out to stakeholders.

The USDA expected progress on the final rule and for its standards for organic aquaculture to be finalized by the end of the year, but Lockwood says this is a sign of a continuing delay.

There is a large demand for organic fish products in the United States, according to an article by the Fish Site available here.

Standards for US organic aquaculture have been developing for 15 years, but Lockwood is skeptical about when the standards will actually be finalized.

For more information on aquaculture, please visit the National Agricultural Law Center’s website here.

May 16 CLE: Mid-South Agricultural & Environmental Law Conference

Posted April 24, 2014

The Arkansas Bar Association, the National Agricultural Law Center, and the National Sea Grant Law Center will host the first annual Mid-South Agricultural & Environmental Law Conference on May 16, 2014.  The Delta Farm Press and Ag Fax reported on the story here and here.

“This is the first conference of its kind, and is in direct response to requests we’ve received to provide legal research and information specific to Mid-South agriculture,” said Harrison Pittman, director of the National Agricultural Law Center.  “Farming in the Mid-South has its own unique legal and policy aspects.  This conference is meant to address those, and we’ve got a top-flight lineup of experts to speak on the topics.”

The conference offers 6.0 hours of CLE credit, including 1.0 Ethics hour in Arkansas, Mississippi, and Louisiana.  The complete schedule is available here.

Topics and speaker include:

“Litigating Federal Crop Insurance Disputes: Overview and Discussion of Important Practical Pointers and Pitfalls”

J. Grant Ballard, Banks Law Firm PLLC

“Agricultural Leases for Mid-South Farmers, Lenders, and Landlords”

William C. Bridgforth, Ramsey, Bridgforth, Robinson and Raley LLP

James Calman McCastlain, Dover Dixon & Horne PLLC

J. Travis Baxter, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

“The Gulf Dead Zone and Gulf Restoration v. EPA: What it Means for Agriculture in the Mississippi River Basin”

John Milner, Brunini, Grantham, Grower & Hewes, PLLC

“Hot Topics in Invasive Species Management: Lacey Act Reform, Biofuels, and More”

Stephanie Showalter Otts, Director, National Sea Grant Law Center

“Interacting Ethically with State Agencies”

Drew L. Kershen, Earl Sneed Centennial Professor of Law, The University of Oklahoma College of Law

“Nuisance Lawsuits and Right-to-Farm Laws for Mid-South Agriculture and Aquaculture”

Rusty Rumley, Senior Staff Attorney, National Agricultural Law Center

Location: Harrah’s Casino, 13615 Old Highway North, Tunica, MS.  For hotel reservations, please call 800-223-7277.

Member Cost: Online by 5/9 $270, Mailed/Faxed by 5/9 $290, Onsite after 5/9 $305

Non-Member Cost: $340

Student Cost: $35

Registration information is available here.  For non-attorneys and attorneys not licensed in Arkansas, use event code “CLE751” for online registration.  For any difficulties registering, please contact Kristen Scherm at KScherm@arkbar.com. 

April 22: Direct Marketing Aquaculture Products in Alabama Workshop

Posted April 2, 2014

The National Sea Grant Law Center and the National Agricultural Law Center, in collaboration with the University of Illinois Extension; Auburn University School of Fisheries, Aquaculture and Aquatic Sciences; the Aquaculture and Fisheries Business Institute; Alabama Cooperative Extension System; and Auburn University Marine Extension and Research Center, will host a workshop for aquaculture producers in Alabama looking for ways to diversify their business with direct marketing opportunities.

Date: April 22, 2014 (10 a.m. – 3 p.m.)

Topics:  information on regulatory oversight, personal and business liability, and various methods for direct marketing aquaculture products 

Speakers: representatives from the Alabama Department of Public Health and Department of Conservation and Natural Resources

Workshop Locations:

The Hotel at Auburn University and Dixon Conference Center (Live)

241 South College Street

Auburn, AL

Alabama Fish Farming Center (Remote Broadcast)

529 S. Centreville St.

Greensboro, AL

Auburn University Shellfish Laboratory (Remote Broadcast)

150 Aggassiz St.

Dauphin Island, AL

Please email Terra Bowling at tmharget@olemiss.edu to register or for more information on the workshop.