In a major victory for farmers and property rights, the U.S. Supreme Court has sided in favor of an Idaho couple, the Sacketts, in a significant environmental case against the EPA and Army Corp of Engineers. This decision has national implications for the agriculture industry and affirms the long-standing position Farm Bureau has taken on the Waters of the U.S. (WOTUS) rule.

What is the history of the case?

The case began in 2008, when private property owners Chantell and Michael Sackett purchased a residential lot near a lake in Idaho and began preparing the lot for home construction. The EPA then ordered the Sacketts to halt construction and return the lot to its natural state, arguing that the lot fell under EPA jurisdiction under the Clean Water Act. The Sacketts challenged this claim, and the legal dispute eventually made it to the 9^th Circuit Court of Appeals, and then rose all the way to the Supreme Court. During that same time period, a series of WOTUS rules were issued and replaced under three different Presidential Administrations.

On May 25, 2023, the U.S. Supreme Court released the long-awaited decision. The Court was unanimous in their ruling to reverse the 9th Circuit of Appeals decision, decided for the Sacketts and have remanded the case back to the lower courts for review. This decision has national implications for water quality, ag, development and the Waters of the U.S. (WOTUS) rule.

What is included in the ruling?

While the Court ruled unanimously in favor of the Sacketts, they were split 5-4 on further specifics in their decision. The majority opinion was authored by Justice Alito with concurrence from four other justices (Roberts, Thomas, Gorsuch and Barrett) largely adopting the Rapanos plurality decision, stating that wetlands that are separate from navigable waterways cannot be considered part of those waters, even if they are located nearby. This is exactly what Farm Bureau has advocated for, for years.

The Court’s majority decision states the following precedent:

• The previous “significant nexus” determination can no longer be used. Going forward, for a wetland to qualify as a WOTUS, that wetland must have a continuous surface water connection to a body of water that is itself a WOTUS. (For example, a continuously flowing body of water, river, lake or ocean. No longer can a water feature be considered a WOTUS just because it is close by or adjacent to a flowing feature.
• Wetlands must not only be adjacent, but must be adjoining, to a WOTUS by a continuous surface connection with that water to be considered part of the WOTUS.

What does this mean for farmers and property owners?

Keep in mind that the Sackett case began well before the current, flawed 2023 WOTUS rule. While it does not directly overturn the Biden Administration’s 2023 rule, it removes that rule’s ability to utilize the “significant nexus” test. The Biden administration will likely see major pressure to withdraw and replace its 2023 WOTUS rule. This pressure comes in addition to court decisions in roughly half of the country, including Virginia, that already block the rule.

In order to develop a new rule, the EPA and Army Corps will now have to work within the determinations of Sackett. This is a major win for the agriculture industry, as the next rule must be framed around continuous surface water connections, instead of the vagaries of the previous rule that allow for “significant nexus” that often required a team of engineers to identify.

Still, wetlands and features that do not meet the “continuous surface connection” test for a WOTUS determination may still be regulated under other federal laws, state laws, and Chesapeake Bay regulations here in Virginia. In is every property owner’s responsibility to understand the law as it pertains to development and soil disturbance.

For the time being, Virginia farmers and property owners can breathe a sigh of relief that the difficult WOTUS rule is unenforceable and clearer rules may be on the horizon. As the WOTUS issue continues in its second decade and third Presidential Administration only one this is for certain: this will not be the last time we see this issue litigated and we must remain vigilant to respond to future rulemaking.

The Virginia Department of Conservation and Recreation will offer a two-part agricultural nutrient management training school in June. The school is for anyone interested in learning about the development of agricultural nutrient management plans or how to become a certified plan writer. 

Nutrient management plans determine rates for applying manure, fertilizers, biosolids and other soil amendments so that crop yields are maximized, and nutrient seepage into and ground and surface waters is minimized. 

The first session, June 6-7, is a lecture series by Virginia Tech professors on soil science, soil fertility and crop production. The second session, June 12-14, will cover nutrient management plan writing using a case-study farm. 

Both sessions will be held in the BioScience Building of Blue Ridge Community College in Weyers Cave. Each day runs from 9 a.m. until 4:30 p.m. Registration is $150 for each session, with a sign-up deadline of June 2, 2023. 

Nutrient management continues to be an important factor in a farmer’s decision-making process when considering application of materials to supply nutrients to crops. Application rates are determined by a process using actual yield records or soil productivity when yield records aren’t available. 

More information about nutrient management training and certification is available at www.dcr.virginia.gov/soil-and-water/nmtrain.

Additional payments on the way for livestock producers impacted by drought and wildfire in 2021

Agriculture Secretary Tom Vilsack today announced plans to roll out $3.7 billion in Emergency Relief Program (ERP) and Emergency Livestock Relief Program (ELRP) assistance to crop and livestock producers who sustained losses due to a qualifying natural disaster event in calendar year 2022. USDA is sharing early information to allow producers time to gather documents in advance of program delivery. Through distribution of remaining funds, USDA is also concluding the 2021 ELRP program by sending payments in the amount of 20% of the initial ELRP payment to all existing recipients.

Background

On December 29, 2022, President Biden signed into law the Disaster Relief Supplemental Appropriations Act, 2023 (P.L. 117-328) that provides about $3.7 billion in financial assistance for agricultural producers impacted by wildfires, droughts, hurricanes, winter storms and other eligible disasters occurring in calendar year 2022.  

Additionally, the Act specifically targets up to about $500 million to livestock producers for losses incurred due to drought or wildfire in calendar year 2022.

ERP 2022 for Crop Producers

USDA, through the Farm Service Agency (FSA), intends to deploy the lessons learned from the development and implementation of ERP and ELRP for previous years’ losses to ensure expedited assistance for 2022 losses. 

Based on positive feedback from producers, stakeholder groups and FSA county office staff, USDA intends to provide an ERP track for producers who had coverage through Risk Management Agency’s federal crop insurance or FSA’s Noninsured Crop Disaster Assistance Program (NAP). Through a streamlined application process, USDA intends to be in a position to send pre-filled applications directly to eligible producers in early summer. 

For producers who have not been able to avail themselves of risk management coverage or whose losses were not covered, USDA intends to offer a program track to access ERP assistance with assistance provided to producers who suffered a decrease in allowable gross revenue in 2022 due to necessary expenses related to losses of eligible crops from a qualifying natural disaster event.    

Instead of implementing these program tracks as two separate phases on different timelines, FSA intends to make both tracks available to producers at the same time, noting that the first track will follow a streamlined process with less paperwork burden, based on existing, available risk management data. The second ERP track would require that producers provide FSA with certain information related to revenue.  

ELRP 2022 for Livestock Producers and Close Out of ELRP for 2021 

For impacted ranchers, USDA intends to leverage FSA’s Livestock Forage Disaster Program (LFP) data to deliver ELRP assistance for increases in supplemental feed costs in 2022.

To be eligible for an ELRP payment for 2022 losses, livestock producers will need to have suffered grazing losses from wildfire or in a county rated by the U.S. Drought Monitor as having a D2 (severe drought) for eight consecutive weeks or a D3 (extreme drought) or higher level of drought intensity during the 2022 calendar year and have applied and been approved for 2022 LFP. Additionally, otherwise eligible producers whose permitted grazing on federally managed lands was disallowed due to wildfire will also be eligible for ELRP payments if they applied and were approved for 2022 LFP.

In a continued effort to streamline and simplify the delivery of ELRP benefits, eligible producers will not be required to apply for payment.   

Meanwhile, FSA also intends to provide additional assistance to ranchers for qualifying livestock losses from drought and wildfire in 2021.  More information will be announced in the coming months.

 How Producers Can Prepare 

To participate in ERP and ELRP for 2022 losses, both crop and livestock producers should have or be prepared to have the following forms on file with FSA:   

• Form AD-2047, Customer Data Worksheet (as applicable to the program participant);   
• Form CCC-902, Farm Operating Plan for an individual or legal entity;  
• Form CCC-901, Member Information for Legal Entities (if applicable); and   
• Form AD-1026 Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification.   

Most producers, especially those who have previously participated in FSA programs, will likely have these required forms on file. However, those who are uncertain or want to confirm should contact FSA at their local USDA Service Center.   

In addition to the forms listed above, underserved producers are encouraged to register their status with FSA, using Form CCC-860, Socially Disadvantaged, Limited Resource, Beginning and Veteran Farmer or Rancher Certification, as certain existing permanent and ad-hoc disaster programs provide increased benefits or reduced fees and premiums. 

Producers with eligible crop losses who did not have federal crop insurance or NAP risk management coverage for 2022 and intend to apply for ERP assistance will need to pull together revenue information that is readily available from most tax records. FSA encourages producers to have their tax documents from the past few years and supporting materials ready including Schedule F (Form 1040) and Profit or Loss from Farming or similar tax documents. FSA will not require these forms to be submitted with the ERP application, but will require a certification, similar to Adjusted Gross Income certification that has been used for many years for Farm Bill programs. Applicants simply report and certify to the information required for the program. 

Crop producers who have federal crop insurance coverage should ensure that information on file with their insurance agent is accurate and that any pending activities needed to file loss claims for 2022 losses are addressed as soon as possible. Producers who received ERP assistance last year or who will receive assistance for 2022 losses are required to purchase crop insurance or NAP for the next two crop years. 

More Information  

In the coming months, USDA intends to provide additional information on how to apply for assistance through ERP and ELRP for 2022 losses. Through proactive communications and outreach, USDA will keep producers and stakeholders informed as program eligibility, application and implementation details unfold.   

The U.S. Department of Agriculture (USDA) will cover up to 75% of the costs associated with organic certification, up to $750 per category, through the Organic Certification Cost Share Program (OCCSP). Virginia Farm Service Agency (FSA) encourages organic agricultural producers and handlers to apply for OCCSP by Oct. 31, 2023, for expenses incurred from Oct. 1, 2022, through Sept. 30, 2023.  

As part of USDA’s broader effort to support organic producers and in response to stakeholder feedback, this year FSA increased the cost share to the maximum amount allowed by statute.  

“We’re taking steps to better support Virginia organic producers,” said Dr. Ronald M. Howell, Jr., State Executive Director for FSA in Virginia. “We’ve heard about this program’s value in helping Virginia organic producers and handlers obtain or renew their certifications under the National Organic Program, and I’m pleased that we’re able to increase and restore the cost share to the statutory limit this year. Organic certification costs have long been identified as a barrier to certification, and this assistance, at its full levels, will help Virginia organic producers participate in new markets while supporting and growing our local and regional food systems.”  

Cost Share for 2023 

The cost share provides financial assistance for organic certification, and producers and handlers are eligible to receive 75% of the costs, up to $750, for crops, wild crops, livestock, processing/handling and state organic program fees (California only).  

Virginia producers have until Oct. 31, 2023, to file applications, and FSA will make payments as applications are received.   

How to Apply 

To apply, Virginia producers and handlers should contact their local FSA office USDA Service Center. As part of completing the OCCSP application, producers and handlers will need to provide documentation of their organic certification and eligible expenses.   

Organic producers and handlers may also apply for OCCSP through participating state departments of agriculture. Additional details can be found on the OCCSP webpage.   

Opportunity for State Departments of Agriculture  

FSA is also accepting applications from state departments of agriculture to administer OCCSP. FSA will post a synopsis of the funding opportunity on grants.gov and will electronically mail the notice of funding opportunity to all eligible state departments of agriculture.   

If a state department of agriculture chooses to participate in OCCSP, both the state department of agriculture and FSA County Offices in that state will accept OCCSP applications and make payments to eligible certified operations. However, the producer or handler may only receive OCCSP assistance from either FSA or the participating state department of agriculture.   

Other USDA Organic Assistance  

USDA offers other assistance for organic producers, including the new Organic Transition Initiative (OTI), which includes direct farmer assistance for organic production and processing, conservation and crop insurance.    

For conservation, USDA’s Natural Resources Conservation Service (NRCS) is helping producers adopt the new organic management standard, which allows flexibility for producers to get the assistance and education they need such as attending workshops or requesting help from experts or mentors. It supports conservation practices required for organic certification and may provide foregone income reimbursement for dips in production during the transition period.   

USDA’s Risk Management Agency (RMA) reminds producers interested in the Transitional and Organic Grower Assistance Program, also part of OTI, to visit with their crop insurance agent for more information. Premium benefits for eligible policies will be automatically applied to the producer’s billing statement later this year.      

For producers that participated in the Transitional and Organic Grower Assistance Program, also part of OTI, premium benefits for eligible policies will be automatically applied to the producer’s billing statement later this year.       

USDA’s Risk Management Agency (RMA) also administers federal crop insurance options, including Whole Farm Revenue Protection and Micro Farm, which may be good options for organic producers.   

Also under OTI, is the USDA Agricultural Marketing Service (AMS) National Organic Program’s (NOP) Transition to Organic Partnership Program (TOPP). TOPP builds mentorship relationships between transitioning and existing organic farmers to provide technical assistance and wrap-around support in six U.S. regions.   

On May 10 USDA AMS announced the availability of approximately$75 million in grant funding for the Organic Market Development Grant (OMDG) program. OMDG will fund businesses transitioning to organic or initiating new organic production or processing and support new, improved and expanded markets for domestically produced organic products with a focus on processing capacity, market access, and product development.  

The U.S. Department of Agriculture (USDA) announces assistance for dairy producers with the new Organic Dairy Marketing Assistance Program (ODMAP). ODMAP is established to help mitigate market volatility, higher input and transportation costs and unstable feed supply and prices that have created unique hardships in the organic dairy industry. Specifically, under the ODMAP, USDA’s Farm Service Agency (FSA) is making $104 million available to organic dairy operations to assist with projected marketing costs in 2023, calculated using their marketing costs in 2022.

“Organic dairy producers have faced significant and unique increases in their marketing costs, compounded by increases in feed and transportation costs and the limited availability of organic grain and forage commodities,” said FSA Administrator Zach Ducheneaux. “Without assistance, many organic dairies, particularly small organic dairies, will cease production, which not only impacts the domestic supply and consumption of organic milk but also the well-being of many rural communities across the country. This program will keep our small organic dairies in operation as they continue to weather a combination of challenges outside of their control.”

FSA will begin accepting applications for ODMAP on May 24, 2023. Eligible producers include certified organic dairy operations that produce milk from cows, goats and sheep.

Adam Warthesen, co-chair of the Organic Trade Association’s Organic Feedstuffs Relief Task Force, and Senior Director of Government and Industry Affairs for Organic Valley said: “With unprecedented organic feed costs and inflationary pressures over the last couple of years, resources like ODMAP are really going to matter as farmers plan for the rest of this year.”

Britt Lundgren, Senior Director of Sustainability and Government Affairs at Stonyfield, said: “The costs facing organic dairy today are uncommon and putting serious strain on operations. USDA is right to step in and offer support, and this is a good first step. The alternative is we lose family farmers. We look forward to working with USDA to cover more of the actual costs organic dairies are facing.”

Lia Sieler, Executive Director of Western Organic Dairy Producers Alliance, said: “We welcome the monetary resources allocated to dairy farmers through ODMAP with much anticipation. Input costs have been at an unprecedented high with no foreseeable changes and farmers are struggling to keep up with these high costs at their current pay price for the specialty products they produce. Farmers are struggling to continue producing a quality, safe and nutritious product with the current costs of doing business. We thank USDA with the help of many members of Congress for stepping in, hearing our voices and working diligently to get money pushed out as quick as possible to help alleviate some of this pain. Our work is not done, but this is a major win for our industry in a time of such uncertainty.”   

Chris Adamo, Vice President of Public Affairs and Regenerative Agriculture Policy with Danone North America, said: “Recent increases to cost of feed and overall inputs have significantly impacted organic dairy farms, and on behalf of Horizon Organic, we are grateful for USDA’s thoughtful work and strong support for the farms that supply our customers’ milk.” 

How ODMAP Works

FSA is providing financial assistance for a producer’s projected marketing costs in 2023 based on their 2022 costs. ODMAP provides a one-time cost-share payment based on marketing costs on pounds of organic milk marketed in the 2022 calendar year.

ODMAP provides financial assistance that will immediately support certified organic dairy operations during 2023 keeping organic dairy operations sustainable until markets return to more normal conditions. 

How to Apply

FSA is accepting applications from May 24 to July 24, 2023. To apply, producers should contact FSA at their local USDA Service Center. To complete the ODMAP application, producers must certify to pounds of 2022 milk production, show documentation of their organic certification, and submit a completed application form.

Organic dairy operations are required to provide their USDA certification of organic status confirming operation as an organic dairy in 2023 and 2022 along with the certification of 2022 milk production in hundredweight.  

ODMAP complements other assistance available to dairy producers, including Dairy Margin Coverage (DMC) and Supplemental DMC, with more than $300 million in benefits paid for the 2023 program year to date.  Learn more on the FSA Dairy Programs webpage.

EProgram Application Deadlines Extended to June 2 

USDA’s Farm Service Agency (FSA) has provided additional flexibilities and further enhanced disaster recovery assistance provided by the Emergency Assistance for Livestock Honeybees, and Farm-raised Fish Program (ELAP), Livestock Indemnity Program (LIP) and Livestock Forage Disaster Program (LFP) in response to needs expressed by livestock producers across the U.S. who have experienced significant feed, forage and animal losses from natural disasters. These livestock disaster program policy enhancements include an extended June 2, 2023, deadline to submit notices of loss and applications for payment for 2022 losses. The deadline extension and program flexibilities are available to eligible producers nationwide who incurred losses from a qualifying natural disaster event.  

LIP and ELAP reimburses producers for a portion of the value of livestock, poultry and other animals that died because of a qualifying natural disaster event or for loss of grazing acres, feed and forage. LFP provides benefits for grazing losses due to a qualifying drought or wildfire. For fire, losses must occur on federally managed lands. ELAP provides benefits for grazing losses not covered under LFP.        

New Program Applications for 2022  

FSA is accepting 2022 LIP notices of loss and applications for payment through June 2, 2023, for all covered livestock that may have been eligible in 2022.     

Producers who did not sign up for ELAP assistance for hauling livestock, forage and feedstuff hauling or other losses covered under ELAP in 2022 can also apply through June 2, 2023.     

FSA will accept LFP applications for only newly eligible covered livestock through June 2, 2023.    

All required supporting documentation must be received and on file in the county office by the established deadline.     

Revising 2022 Applications   

Producers who have a 2022 ELAP, LIP or LFP application on file with FSA as of the program deadline or were placed on an approved register, may revise their application with the newly updated eligible livestock no later than June 2, 2023.    

Filing a Notice of Loss for ELAP due to 2022 and 2023 Drought  

To support program access for counties that do not currently have a 365-day grazing season, FSA is waiving the 30-day timeframe for producers to submit a notice of loss for the 2023 ELAP program year due to qualifying drought in calendar years 2022 or 2023. Producers can now submit a notice of loss from the date the loss is apparent, as far back as Jan. 1, 2023, for 2022 eligible losses and 2023 eligible losses that occur before June 2, 2023.     

For counties that have a 365-day grazing season, producers must have a qualifying drought in the 2023 calendar year to be eligible for 2023 livestock, water and feed hauling in 2023.  

More Information  

Livestock producers must provide evidence that livestock death was due to an eligible adverse weather event or loss condition. In addition, livestock producers should bring supporting evidence, including documentation of the number and kind of livestock that died, photographs or video records to document the loss, purchase records, veterinarian records, production records and other similar documents. Owners who sold injured livestock for a reduced price because the livestock were injured due to an adverse weather event, must provide verifiable evidence of the reduced sale of the livestock. Producers can apply for ELAP, LFP and LIP benefits at their local FSA county office. For more information or to submit a notice of loss or an application for payment, please contact your local FSA office or visit farmers.gov/recover.

After serving three terms in the Virginia House of Delegates, Del. Wendy Gooditis announced she will not seek another term in the 2023 elections. She has been a strong voice for Virginia’s agricultural industry, as she was assigned to the Agriculture, Chesapeake and Natural Resources Committee and at one time served as vice chair of the committee.

Redistricting eliminated House District 10, separating it into House Districts 29, 30 and 31. Gooditis resides in the new House District 31. As she moves forward, she remains dedicated to serving her rural community. She encourages her constituents to stay engaged in the political process and to continue working towards a better future for all Virginians. She will remain in office through the end of 2023.

Join us as we sit down with Del. Wendy Gooditis and talk about her favorite moments from her time in office and what she plans to do next.