U.S. District Court Judge Ralph Erickson was formally petitioned to expand his ruling given EPA interpreted his decision to only apply to the 13 states which were part of the original court action.  Erickson immediately asked the states and the federal government to file briefs on whether his order should apply nationally, and his decision could come at any time, sources said. 

Erickson blocked EPA's controversial "waters of the U.S. (WOTUS)" final rule just hours before it was to take effect August 28, and it appeared to be a partial victory for opponents as the federal court preliminary injunction was interpreted by EPA to apply only to the 13 states which joined in filing for the order.  Two other requests for preliminary injunctions sought in federal District Courts in Georgia and West Virginia were denied. 

The states where the preliminary injunction is in force and the rule is blocked are Arkansas, Alaska, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.  EPA said, "In all other respects, the rule is effective on August 28.  The agencies are evaluating these orders and considering next steps in the litigation."

At the same time this week several national agriculture groups sent letters to EPA and the U.S. Army Corps of Engineers asking the two agencies to relent on their interpretation of the court decision and administratively act to suspend the rule nationwide until a federal suit challenging the rule has been decided.

The National Milk Producers Federation (NMPF) asked EPA to broaden its suspension of the rule because dairy farmers will be treated differently depending on where farms are located.  NMPF said the national suspension of WOTUS is necessary "until such time as (the rule) can be evenly applied in every state."  The National Pork Producers Council also called on the Administration to suspend WOTUS nationally.   

Acknowledging FDA needs more money to implement and enforce food safety laws, more than 60 agriculture and food groups - including the American Feed Industry Assn. (AFIA) - this week told the White House to increase the FDA budget, but don't even think about doing it through user fees on the regulated industry.

Their message was echoed by Rep. Rosa DeLauro (D, CT) and Rep. Sam Farr (D, CA) who called on the Office of Management & Budget (OMB) and the Department of Health & Human Services (HHS) to ask the President to fully fund FDA's food safety programs, including the Food Safety Modernization Act (FSMA).  Farr is the ranking minority member of the House Appropriations Committee subcommittee on agriculture/FDA, and DeLauro is a member of the subcommittee and former chair of that panel. 

"Once the major rules are completed in the coming year, FDA will require additional funding to fully implement FSMA.  In your FY2017 budget request, we again urge you to avoid requesting disproportionate new user fees to implement FSMA," the two lawmakers wrote. "Congress has rejected the Administration's last five requests to provide...user fees.  No bill to authorize such fees has been introduced and even if enabling legislation is introduced this year, it is highly unlikely that any new law will be enacted in time to fund these vital FSMA implementation steps.  De-emphasizing user fees...will strengthen our common efforts to achieve bipartisan support to fully fund this important law."

Coordinated by the American Frozen Food Institute (AFFI), the industry group letter - sent to the White House as well as to HHS Secretary Sylvia Burwell and OMB Director Shaun Donovan - urged the Administration, as it begins crafting its FY2017 budget proposal, to "adequately fund food safety programs and in particular, FSMA."

"As consumers continue to cope with a period of prolonged economic recovery and food makers and retailers struggle with fluctuating commodity prices, the creation of new food taxes (user fees) would mean higher costs for food makers and lead to higher retail prices for the most vulnerable consumers," the letter said.

The letter also stressed the new and increased costs to the regulated industry from the new FSMA rules on preventive controls for feed/pet food and human food, as well as the costs of industry education and compliance assistance. 

"We believe that while FDA requires additional funds in FY2017 in order to support food inspection activities and meet the upcoming implementation deadline for the  FDA FSMA, the administration should seek all such funding through the congressional budget and appropriations process rather than asking for authorization of new regulatory taxes that Congress has repeatedly rejected," the letter concluded.