DTN Ag Headlines - Mustang Seeds

May 30 2023 - Right, Left Split on Debt Limit Deal

Chris Clayton, DTN Ag Policy Editor and Jerry Hagstrom, DTN Political Correspondent

OMAHA (DTN) -- Farm programs would come out of the debt-ceiling debate largely unscathed as lawmakers gnash their teeth over a compromise spending and debt-limit bill that needs to clear both chambers by June 5.

The bill, the Fiscal Responsibility Act, released over the weekend by Rep. Kevin McCarthy, R-Calif., would cover U.S. debt obligations through Jan. 2, 2025, raising the debt ceiling in the process. The House was called back into session to vote on the bill.

A key part of the bill changes eligibility under the Supplemental Nutrition Assistance Program (SNAP) for single people in their 50s and also could take away some rural broadband funds from USDA. The bill, however, keeps intact much of the Inflation Reduction Act, including its renewable energy tax credits and funding provided to USDA for conservation programs.

Bill backers stressed the bill doesn't affect Social Security, Medicare, Medicaid or benefits for veterans.

The plan ideally is the House will pass the bill sometime late Wednesday. The Senate would be on the clock after that.

The House Rules Committee met Tuesday afternoon in essentially a kickoff of criticisms about the bill. Each side declared the other party's responsibility for bringing the country to another dramatic series of votes over the debt ceiling and budget cuts.

"A lot of Republicans are disappointed that many of the provisions in that bill, if not most of the provisions in that bill, did not make it into this bill," said Rep. Tom Massie, R-Ky., referring to the "Limit, Save and Grow Act," the budget bill initially passed by House Republicans in April.

Massie, however, also pointed to language in the bill that indicated another 1% cut in spending if the House and Senate do not pass all 12 spending bills for FY 2024.

"It's not perfect. I would personally want it to be better," said Rep. Ron Estes, R-Kansas, a member of the House Budget Committee. "It does put some limits on the spending, which is really where we need to go."

The bill got significant pushback Tuesday from lawmakers on both sides of the aisle. Republicans House members who are members of the House Freedom Caucus held a press conference at the Capitol calling on their colleagues to vote against the bill. Others took their opposition to social media.

"Absolutely no one wants to default but this current deal is unacceptable. I have read this bill twice and as the language currently stands, I will be voting no to raise the debt ceiling," stated Rep. Kat Cammack, R-Fla., a member of the House Agriculture Committee. Cammack added disappointment that the bill doesn't include more regulatory reform.

A briefing by White House staffers on Tuesday highlighted the bill would essentially leave nonmilitary spending as essentially flat for the Fiscal Year 2024 budget.

On SNAP, Republicans stressed changes in eligibility for able-bodied adults up to age 55 would lead to more people taking eligible jobs. The bill, however, protects the ability for states to maintain those job waivers in areas with high unemployment. The age limit for SNAP would increase incrementally through 2025. But the bill also takes away some SNAP restrictions for veterans, homeless people and former foster youth through age 24.

Rep. Jim McGovern, D-Mass., ranking member of the House Rules Committee, who also serves on the House Agriculture Committee, noted there have not been any hearings about the population of single adults on SNAP. He said those people don't all fit into categorical boxes, but the budget looks to affect lower-income people without understanding how they will be affected.

"People are going to fall through the cracks," McGovern said. He added, "It's hard to get a job if you are over 50. You may not have the skill set. Also, depending on where you live -- if you live in a rural area, you don't have public transportation."

Rep. Mike Thompson, D-Calif., agreed with McGovern but also said the compromise bill "would avert an economic disaster" and needs to be passed.

At least a few Democrats also questioned why Republicans pushed for the SNAP changes in a debt-limit bill when the House Agriculture Committee is already working on the next farm bill.

"We're in the middle of the farm bill. That's where you deal with that. We already have work requirements. If you think they need to be amended, the farm bill is the place to do that," Thompson said.

Before the bill text was released, Center on Budget Policy and Priorities President Sharon Parrott said in a statement that the SNAP provisions would put hundreds of thousands of people between ages 50-54 at risk of losing food assistance.

"A large share of low-income adults in this age range are in poor health; many of them will lose basic assistance they need to buy groceries because they aren't able to meet the work-reporting requirement; and the exemption system, notoriously laden with red tape, won't work," Parrott said.

Rep. Jason Smith, R-Mo., chairman of the House Ways & Means Committee, also pointed to other job requirements for Temporary Assistance for Needy Families (TANF). Smith said the changes to TANF "are the most meaningful in the past two decades." Smith said the provisions put more pressure on states to report work outcomes from TANF recipients.

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

Jerry Hagstrom can be reached at jhagstrom@nationaljournal.com

Follow him on Twitter @hagstromreport

May 30 2023 - Second Man Pleads Guilty in Crops Fraud

LINCOLN, Neb. (DTN) -- A second Minnesota man involved in an alleged organic crops conspiracy has pleaded guilty to making a false statement and could spend up to 14 months in jail, according to a plea agreement filed in the U.S. District Court for the District of Minnesota.

In addition, Adam Clifford Olson, owner and operator of Olson Seed LLC in Windom, Minnesota, would have a Jan. 11, 2023, indictment against him dropped as part of the agreement with prosecutors.

Cottonwood County, Minnesota, farmer James Clayton Wolf pleaded guilty to one count of wire fraud earlier in May for his role in a scheme to falsely sell $46 million in non-GMO corn and soybeans as organic. Wolf was indicted by a grand jury last year on three counts of wire fraud.

According to Olson's plea agreement he admits that he misrepresented the extent of his involvement in Wolf's farming operation when Olson applied for crop insurance in April 2020 for organic crops farmed by Wolf.

"Olson made the misrepresentation to obtain crop insurance and he knew at the time he signed the certification that it was false," according to the plea agreement.

As a result of Olson's actions, according to the agreement, the Federal Crop Insurance Corp. awarded $69,380 in total subsidies and reimbursements to Wolf's operation for 2020.

"On or about April 6, 2020, in the state and district of Minnesota the defendant Adam Clifford Olson knowingly and willfully made a false statement and report for the purpose of influencing the action of an insurer," the plea agreement said.

The one count Olson admits to carries up to 30 years in prison and up to a $1 million fine.

According to the indictment, Wolf grew conventionally farmed crops using chemical fertilizers and pesticides, which would be in violation of organic-farming standards. Olson was added to the indictment for his alleged role in the scheme.

GRAINS NOT ORGANICALLY FARMED

For years, Wolf provided grain purchasers with copies of his National Organics Program certification, but according to the indictment, he withheld information that the grains were not organically farmed. The scheme resulted in Wolf allegedly receiving more than $46 million in payments from grain buyers.

The indictment alleged Wolf directed some grain payments to a third party who then "spent the money for Wolf's benefit." His organic-farming certification was revoked in 2020. The indictment, however, alleges Wolf "utilized an associate" to continue the scheme by selling non-GMO crops as organic.

Wolf and other associates communicated with a grain supplier and with buyers via email and telephone, including sending documents "falsely describing" the grain as organically grown.

Organic crops are grown without the use of GMOs or chemicals, and farmers are required to follow strict protocols when it comes to planting, fertilizing, harvesting, storage and transportation of the crops labeled as organic.

May 29 2023 - Cash Market Moves

While the Bipartisan Rail Safety Act has yet to be made into law, some states are enacting their own safety laws, one of them being the two-person crew requirement that unions fought for, but did not get, in the recent 2023 negotiations.

On May 24, Minnesota Governor Tim Walz signed a two-person crew bill into law. The Brotherhood of Locomotive Engineers and Trainmen (BLET) called it a victory for railroad safety. The requirement was included in H.F. 2887, the Transportation Omnibus Bill, which earlier had passed in the Minnesota legislature with bipartisan support.

"This is a culmination of 10 years of hard work by the BLET Minnesota State Legislative Board," said Joel Mueller, chairman of the BLET's Minnesota State Legislative Board. "Both Rep. Brand and Sen. McEwen have been strong supporters of this important rail safety legislation and fought to ensure it was included in the final omnibus bill and helped to get it over the finish line."

Can states actually regulate train crew size? Railway Age noted in a May 26 article on its website that, "In the absence of federal law or regulation (and there currently is neither), states have authority under the 10th amendment (States' Rights) to regulate rail safety -- the 1995 ICC Termination Act having prohibited states from regulating railroad rates and practices and leaving economic regulation solely with the ICC/STB. Minnesota is now the 12th state to enact a two-person minimum crew law."

The transportation bill addresses other rail safety issues supported by the BLET Minnesota State Legislative Board, including the addition of two new state rail safety inspectors. According to Minnesota Department of Transportations, "rail track inspector monitors and inspects functions of railroad track and structures to assure compliance with Federal Safety and Health Regulations among railroads, railroad employees and contractors for railroads within an assigned geographical territory." Other duties are listed here: https://www.dot.state.mn.us/….

UPDATE ON UNION MEMBERS' SICK DAYS

After losing a provision for paid sick days in their 2023 contract negotiations, the rail unions continued to push railroads for some sort of sick day policy. CSX Transportation was the first railroad to provide sick days and has still been negotiating with its union members.

On May 22, CSX announced that it had reached a tentative agreement with the Sheet Metal, Air, Rail and Transportation Workers-Transportation Division CSRA (SMART-TD CSRA) to provide paid sick leave benefits.

"The SMART-TD CSRA agreement, which is pending ratification by union members, marks the 10th such agreement CSX has reached with its union-represented employees since February. A majority of the company's unionized workers now have paid sick leave benefits," noted the CSX on its company website.

As of May 1, Union Pacific (UP) has granted sick days to 47% of its workers, Norfolk Southern (NS) to 46%, and BNSF, the largest freight railroad, to 31%. At those companies, eight to 10 of their 12 unions have reached agreements.

Then, on May 18, BLET announced the first deal on engineer paid sick leave with the NS that will provide up to seven paid sick days per year to BLET members. "The agreement will provide Norfolk Southern engineers with five new days of paid sick leave per year while also offering them the flexibility to use up to two additional days of existing paid time off as sick leave," stated BLET.

"The new agreement will provide new paid sick leave benefits to over 3,300 Norfolk Southern engineers, representing almost 25% of the NS craft workforce. With this agreement, almost all of the company's craft employees -- approximately 98% -- have entered into paid sick leave deals," said the NS press release.

"This is a big day for the BLET," said Scott Bunten, BLET general chairman (NS-Eastern Lines GCA). "Our members are the heart of the railroad, and this agreement is a major win in our tireless efforts to improve the quality of their experience on and off the job."

"I deeply appreciate the contributions of our Norfolk Southern engineers and the longstanding partnership we've had with the BLET," said Alan H. Shaw, president and CEO of Norfolk Southern. "This agreement builds on that relationship and continues our industry-leading effort to enhance quality of life as we become the first railroad to reach an engineer sick leave deal."

For more information, see the following:

NS press release on BLET sick days: http://nscorp.mediaroom.com/…

CSX May 22 press release: https://www.csx.com/…

Railway Age story on two-person crews: https://www.railwayage.com/…

Mary Kennedy can be reached at mary.kennedy@dtn.com

Follow her on Twitter @MaryCKenn

May 26 2023 - Wetlands Seen Differently Today

By Jerry Hagstrom, DTN Political Correspondent, and Chris Clayton, DTN Ag Policy Editor

WASHINGTON (DTN) -- Like so many other political rifts in the U.S., the reaction to the U.S. Supreme Court decision on the Clean Water Act Thursday reflects another divide, though agricultural groups were elated in the ruling that curbs EPA's power to regulate wetlands.

There was even disagreement over whether the ruling was unanimous or a 5-4 split. Each Supreme Court justice unanimously agreed the plaintiffs in the case, Idaho residents Michael and Chantell Sackett, should have never faced an EPA wetland determination, but four justices split with a majority, arguing that Justice Samuel Alito's decision went too far in restricting how the federal government should regulate waters under the Clean Water Act.

Alito's ruling set a new standard that the Clean Water Act only extends to "'wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right,'" Alito wrote.

Without a doubt, the ruling will force EPA and the Biden administration to once again draft new rules for defining waters of the U.S.

The National Cattlemen's Beef Association said it "strongly supports this ruling and is currently engaged in a litigation against the Environmental Protection Agency (EPA) regarding the Biden administration's WOTUS definition."

"Cattle producers across the country can breathe a sigh of relief today," said Todd Wilkinson, South Dakota cattle producer and NCBA president.

"Since EPA's adoption of the 'significant nexus' test, cattle producers have had to retain costly legal services to determine if water features on their property are federally jurisdictional," Wilkinson said.

"Today's Supreme Court opinion refocuses the Clean Water Act on protecting our water resource through regulatory clarity. We look forward to working with the EPA and U.S. Army Corps of Engineers as they implement the court's new Continuous Surface Connection standard."

NCBA, along with the American Farm Bureau Federation, had submitted an amicus brief in the Sackett case, encouraging elimination of the significant nexus test in exchange for the group called "a more practical standard."

President Joe Biden, responding to the ruling, said the Supreme Court decision, "will take our country backwards." Biden said wetlands will now be "at risk of pollution and destruction, jeopardizing the sources of clean water that millions of American families, farmers, and businesses rely on."

Biden's statement added that the decision "upends the legal framework that has protected America's waters for decades. It also defies the science that confirms the critical role of wetlands in safeguarding our nation's streams, rivers, and lakes from chemicals and pollutants that harm the health and wellbeing of children, families, and communities."

House Agriculture Committee Chairman Glenn "GT" Thompson, R-Pa., said the unanimous ruling "is a victory for America's farmers, ranchers, and landowners."

Thompson added, "The decision reaffirms the rights of property owners and provides long-needed clarity to rural America. In light of this decision, the Biden administration should withdraw its flawed final WOTUS rule. It is time to finally put an end to the regulatory whiplash and create a workable rule that promotes clean water while protecting the rights of rural Americans."

Sen. John Hoeven, R-N.D., the ranking member on the Senate Agriculture Appropriations Subcommittee, said, "This ruling is an important step toward reining in the Biden administration's repeated regulatory overreaches."

Hoeven also pointed to the Biden administration's "waters of the U.S. rule," which had relied upon the significant nexus test when it was drafted.

"The new WOTUS rule being pushed by the EPA would impose tremendous burdens on industries across our economy, including agriculture, energy and construction. That means even higher costs for consumers and stunted economic growth, limiting the creation of good-paying jobs."

AG GROUPS PRAISE NEW STANDARD

National Association of Wheat Growers CEO Chandler Goule said, "NAWG is pleased with the rule the Supreme Court issued today that rejected the confusing and expansive 'significant nexus' test that broadened the jurisdiction of the Clean Water Act."

"The Supreme Court ruling sided with a narrower definition of the Clean Water Act jurisdiction and limited the number of wetlands that would come under the regulation of the Clean Water Act," Goule said.

National Corn Growers Association President Tom Haag said, "This sensible ruling preserves protections for our nation's valuable water resources while providing clarity to farmers and others about the process of determining federal jurisdiction over wetlands."

National Association of State Departments of Agriculture CEO Ted McKinney said the ruling "comes as welcome news to farmers, landowners and state departments of agriculture who sought clarity on what has been an over-litigated issue for decades."

McKinney added, "We take relief in this decision as the justices clearly state the 'significant nexus theory is particularly implausible' and the EPA has no statutory basis to impose the standard."

National Council of Farmer Cooperatives President and CEO Chuck Conner said, "The years of whiplash over what is or is not a water of the U.S. had brought us to a point where no one could tell their headwater from their estuary."

Conner added, "Water quality is a critical issue, but that doesn't mean every puddle on the farm needs to be subject to federal jurisdiction."

ENVIRONMENTAL GROUPS SEE WETLANDS AT RISK

The Environmental Working Group declared agricultural activities are one of the main sources of water pollution in U.S. rivers, streams, lakes, wetlands and groundwater. Each year, farm operators apply more than 12 million tons of nitrogen fertilizer and 8 million tons of phosphorus fertilizer to cropland, some of which runs off into water sources, EWG stated.

As a result of the ruling, "millions of acres of wetlands across the country will no longer be protected under the Clean Water Act," EWG stated.

EWG president and co-founder Ken Cook said, "The Supreme Court's ruling undermines the EPA's authority to prevent damage to wetlands and other drinking water sources from farm pollution and other industrial activities that can have serious implications for public health."

Trout Unlimited President and CEO Chris Wood said the group is disappointed with the Supreme Court's ruling as well.

"The court has severely eroded a 50-year national commitment to clean water, and misses the obvious point that wetlands are often connected to streams through subsurface flows," Wood said. "The ruling is a victory for muddy thinking, and directly compromises the stated purpose of the Clean Water Act--to make our rivers and streams more fishable, swimmable, and drinkable.

Wood added, "It is critical that the Biden administration continue advocating for a 'waters of the U.S.' definition that is rooted in science and ensures protection of the small streams and wetlands that provide clean water for people, communities, businesses, farmers, and fish and wildlife.

The Chesapeake Bay Foundation said the ruling "could damage the decades-long effort to restore the Chesapeake Bay and its waterways."

Chesapeake Bay Foundation Vice President of Litigation Jon Mueller said in a news release, "This dangerous decision risks damaging decades-long efforts by multiple states, federal agencies, and local jurisdictions to restore the Bay and its waterways.

"States without strong wetlands protections could now abandon their Chesapeake Clean Water Blueprint responsibility to reduce nitrogen, phosphorus, and sediment pollution in those areas because they are no longer covered by the Clean Water Act."

Mueller added, "Far from clarifying which waters are protected by the Clean Water Act, this ruling only sets us up for continued litigation and uncertainty while limiting our ability to protect and preserve the natural wonder we all treasure. The bay, its tributaries, and the 18 million people living in its watershed deserve better."

Also see, "Supreme Court Sides With Sacketts in Clean Water Act Case,"

https://www.dtnpf.com/…

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

Jerry Hagstrom can be reached at jhagstrom@nationaljournal.com

Follow him on Twitter @hagstromreport

May 26 2023 - SCOTUS Sides With Sacketts in CWA Case

LINCOLN, Neb. (DTN) -- The Supreme Court sided with two Idaho property owners in their ongoing wetlands dispute with EPA on Thursday, ruling EPA's use of the significant nexus test when making Clean Water Act determinations is too broad.

In writing the 5-4 majority opinion, Justice Samuel Alito said EPA has misinterpreted the Clean Water Act's reach when it comes to the property owned by Michael and Chantell Sackett and that the term significant nexus isn't found in the Clean Water Act.

"In sum, we hold that the CWA extends to only those 'wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right,' so that they are 'indistinguishable' from those waters," Alito said in his opinion.

"This holding compels reversal here. The wetlands on the Sacketts' property are distinguishable from any possibly covered waters."

The ruling will naturally lead to lower courts examining how the decision applies to the Biden administration's definition of "waters of the U.S." that right now is under court injunctions in at least 26 states tied to two separate courts.

The American Farm Bureau Federation praised the Supreme Court decision, stating EPA "clearly overstepped its authority under the Clean Water Act by restricting private property owners from developing their land despite being far from the nearest navigable water."

Zippy Duvall, president of AFBF, then called on the Biden administration to rewrite its waters of the U.S. rule. "Farmers and ranchers share the goal of protecting the resources they're entrusted with, but they deserve a rule that provides clarity and doesn't require a team of attorneys to properly care for their land," Duvall said.

EPA Administrator Michael Regan expressed disappointment in the court ruling, stating the Supreme Court decision "erodes longstanding clean water protections." Regan added, "The Biden-Harris Administration has worked to establish a durable definition of 'waters of the United States' that safeguards our nation's waters, strengthens economic opportunity, and protects people's health while providing the clarity and certainty that farmers, ranchers, and landowners deserve. These goals will continue to guide the agency forward as we carefully review the Supreme Court decision and consider next steps."

The Sacketts have been battling EPA since 2007 for the right to build on land the agency has deemed to be a wetland. Their property sits on a lakefront and they've argued that there is no surface connection between the lake and their land.

Alito said in the majority opinion that the Clean Water Act's reach is far narrower than EPA has opined.

"The EPA, however, offers only a passing attempt to square its interpretation with the text and its 'significant nexus' theory is particularly implausible," Alito writes. He said the definition of waters of the U.S. is more limited. "And, in any event, the CWA never mentions the 'significant nexus' test, so the EPA has no statutory basis to impose it," Alito stated.

One environmental group characterized the court's decision as 'stripping out key protections' from the Clean Water Act.

Manish Bapna, president and CEO of the Natural Resources Defense Council, said in a statement to DTN that the court "ripped the heart" out of the law.

"The majority chose to protect polluters at the expense of healthy wetlands and waterways," Bapna said. "This decision will cause incalculable harm. Communities across the country will pay the price."

The agency's use of the significant-nexus standard has been at the heart of opposition from agriculture and other industries to recent iterations of the waters of the U.S. rule.

The standard essentially allows the EPA and the U.S. Army Corps of Engineers to determine waters are covered by the law if there is a chemical connection to larger navigable water bodies.

The Sacketts have filed many appeals on the EPA decision in the past 15 years.

The U.S. Court of Appeals for the Ninth Circuit had sided with EPA's wetland assessment on the Sacketts' property. The court's ruling sends the appeals court decision back to the court for reconsideration.

Alito said in the majority opinion that EPA's interpretation of the law "gives rise to serious vagueness concerns in light of the CWA's criminal penalties."

"Due process requires Congress to define penal statutes 'with sufficient definiteness that ordinary people can understand what conduct is prohibited'," Alito writes, "and 'in a manner that does not encourage arbitrary and discriminatory enforcement.' Yet the meaning of 'waters of the United States' under the EPA's interpretation remains hopelessly indeterminate.

"The EPA contends that the only thing preventing it from interpreting 'waters of the United States' to 'conceivably cover literally every body of water in the country' is the significant-nexus test."

Alito's ruling noted in defining "waters of the U.S.," the court revisits what has been "a contentious and difficult task." Alito said the phrase "waters of the U.S." has sparked decades of EPA action and litigation.

The boundary between "significant" and insignificant is far from clear, Alito wrote.

EPA argued that "waters" also includes wetlands. But Alito points to the presence of puddles and also noted in an earlier decision that ponds are not considered part of waters of the U.S.

Alito went into an extensive writing about where wetlands fall in the CWA.

Justice Brett Kavanaugh concurs in his opinion but said that the "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right so that they are "indistinguishable" from those waters."

Kavanaugh wrote that he agreed the Sacketts' property should not have been covered under the Clean Water Act, but he said the majority ruling goes too far in removing the significant nexus test. The court's new "continuous surface connection" goes against 45 years of consistent agency practice and court precedents, Kavanaugh wrote.

"By narrowing the act's coverage of wetlands to only adjoining wetlands, the court's new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States."

DTN Ag Policy Editor Chris Clayton contributed to this report.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

May 25 2023 - Draft Opinion Eases Enlist Restrictions

JEFFERSON CITY, Mo. (DTN) -- Farmers in 10 states currently banned from using Enlist One and Enlist Duo may get access to the herbicides. This is after a draft biological opinion from the U.S. Fish and Wildlife Service (USFWS) determined the registration of the products, as proposed, is not likely to jeopardize the continued existence of endangered or threatened species.

On May 24, EPA initiated a 60-day public comment period on the 155-page document, which calls for the removal of county prohibitions in Arizona, Colorado, Louisiana, New York, Pennsylvania and South Carolina and the establishment of sub-county level restrictions in Alabama, Georgia, Tennessee and Texas. Florida is the only state where no changes are proposed to the current prohibition.

The biological opinion considered 22 threatened or endangered species, from the Attwater's greater prairie chicken and dusky gopher frog to Virginia sneezeweed and the Panama City crayfish. While USFWS concluded that all species in the opinion have vulnerabilities, the herbicides were not likely to jeopardize their continued existence.

In January 2022, EPA granted seven-year registrations and labels for Enlist Duo and Enlist One herbicides. Both contain 2,4-D choline and are intended for post-emergent application over genetically modified corn, cotton and soybeans.

The labels were among the first to include mitigation measures intended to protect federally threatened and endangered species. This "pick list" included off-field conservation buffers, such as vegetative filter strips, grassed waterways and field borders intended to reduce runoff and erosion. Also included were on-field conservation practices, such as reduced tillage in the form of no-till and strip-till, as well as planting cover crops.

However, the labels also included county-level restrictions to ensure that the herbicides did not harm federally threatened and endangered species or adversely modify their designated critical habitats. Initially, use of Enlist Duo was banned in 217 counties in 21 states, with the bulk falling in Arkansas, Florida, Kansas, Nebraska, Ohio, Oklahoma and Texas. Enlist One was prohibited from use in 169 counties in 14 states, many of which overlapped with the list of banned counties for Enlist Duo.

Most of the counties were banned due to the agency's concern over risks to the American burying beetle, an endangered insect, as well as potential threats to the Eastern Massasauga, a species of rattlesnake. After Corteva brought new data to EPA on the beetle, and the agency discovered updated maps for the rattlesnake's range, the agency reversed course. In late March 2022, the labels for Enlist Duo and Enlist One were amended, allowing use of the products in 134 counties where it was previously prohibited.

However, several dozen counties remained banned from Enlist One and Enlist Duo applications in Alabama, Arizona, Colorado, Florida, Georgia, Louisiana, New York, Pennsylvania, South Carolina, Tennessee and Texas.

REACTION TO DRAFT OPINION

In a statement sent to DTN, Corteva said the company is pleased the USFWS's draft biological opinion concludes that the proposed registration of Enlist One and Enlist Duo herbicides is not likely to jeopardize the continued existence of any of the species analyzed.

"We will continue to take appropriate actions to ensure that growers continue to have access to these and other technologies critical to their operations, while also protecting human health and the environment," the statement read.

News of the USFWS's preliminary findings was encouraging to soybean farmers who have rapidly adopted Enlist E3 soybeans as a means of combatting herbicide-resistant weeds.

"While we are still reviewing the draft biological opinion, we are initially optimistic this proposal would move the Enlist and Enlist Duo registrations in a positive direction," said Alan Meadows, American Soybean Association director and Tennessee soybean farmer. "We appreciate EPA and Fish and Wildlife Service for considering revising restrictions that, when viewed with the best available science, are found unnecessary to protect endangered species.

"The American Soybean Association has long believed that when more data is used in Endangered Species Act reviews, it will result in better regulatory decisions that only require protections that are truly necessary and justified by sound science," Meadows continued. "We look forward to further reviewing it and offering comments in the days ahead."

Not everyone was pleased with the draft biological opinion.

"The Fish and Wildlife Service has completely dropped the ball by failing to include on-the-ground conservation measures for this dangerous pesticide," said Brett Hartl, government affairs director at the Center for Biological Diversity. "The agency expects the pesticide to cause serious harm to endangered butterflies like the Dakota skipper but plans to do nothing about it. Despite minimal measures required to reduce runoff, the Fish and Wildlife Service is giving the EPA 18 months to implement them. These measures need to be in place for this growing season, not 2025. What's the point of doing this work if species are left without a safety net for years as the agencies sit on their hands?"

MEASURES TO MINIMIZE EXPOSURE

According to EPA, the draft biological opinion describes measures to minimize potential exposure and effects to endangered species. It also accounts for measures that are included as part of the registration decision that are intended to ensure that Enlist products are not likely to jeopardize listed species or adversely modify critical habitats. The draft includes actions EPA must take to minimize incidental harm to listed species and critical habitats.

In its announcement of the 60-day public comment period, EPA stated the agency is particularly interested in feedback on the feasibility of the pick list of conservation measures that are intended to further reduce movement of Enlist One and Enlist Duo off treated fields after application. After the public comment period ends on July 24, EPA will provide USFWS with the comments for its consideration before it finalizes the biological opinion. The issuance of the final biological opinion is the last step in EPA's formal consultation process with USFWS. Once USFWS issues its final biological opinion, EPA will work with the registrants to implement it.

The Enlist draft biological opinion can be found here: https://www.epa.gov/….

Those who wish to comment on the opinion may do so here: https://www.regulations.gov/….

Jason Jenkins can be reached at jason.jenkins@dtn.com

Follow him on Twitter @JasonJenkinsDTN

May 24 2023 - NBAF Readies for Global Science Mission

MANHATTAN, Kan. (DTN) -- A nearly two-decade strategy to better protect the country from the risks of dangerous foreign-animal diseases will come to fruition on Wednesday. USDA and Kansas officials will formally hold the ribbon-cutting for the National Bio and Agro-Defense Facility adjacent to the Kansas State University campus.

Dubbed NBAF, the new state-of-the-art animal-disease laboratory in Manhattan, Kansas, will replace the 68-year-old Animal Defense Center located on Plum Island, New York, a small island just off the northeastern tip of Long Island. The $1.25 billion NBAF sits on a 48-acre campus just a stone's throw away from Kansas State University. Once its science work is fully operational -- possibly in late 2024 -- the 574,000-square-foot laboratory is expected to become one of the premier laboratories globally for research on highly contagious foreign-animal diseases.

Last week, DTN was among a group of journalists who were granted a tour of the new laboratory facility.

NBAF came out of a 2004 homeland security directive from President George W. Bush, and the facility is considered "critical infrastructure" to the security of the food system to prevent the risks of foreign-animal diseases being introduced into the U.S. naturally, accidentally or intentionally. The new facility is designated as a national security asset.

"We need to provide our scientists with the tools to develop the next generation of countermeasures and diagnostics," said Alfonso Clavijo, director of NBAF and former director of Canada's National Centre for Animal Disease. "So, the need for having NBAF is critical."

Initially, NBAF was supposed to be a Department of Homeland Security facility, as DHS had taken over Plum Island in 2002. A 2017 executive order from President Donald Trump led Congress in 2019 to approve transferring operation of the facility over to USDA's Agricultural Research Service (ARS) and Animal and Plant Health Inspection Service (APHIS). DHS still oversaw the construction of the campus.

BIOSAFETY CAPABILITIES

A key upgrade for NBAF over Plum Island is the addition of laboratories with higher levels of laboratory security, allowing for the study of more dangerous foreign diseases. Along with biosafety level 3 labs, NBAF also has biosafety level 4 (BSL-4) labs. Before NBAF, the U.S. did not have a laboratory capable of developing diagnostics and vaccines for certain zoonotic diseases -- those infections that can be naturally transmitted from animal to human. The World Health Organization cites that between 60% and 75% of new and emerging infectious diseases are zoonotic.

NBAF will be one of just a handful of BSL-4 labs globally focusing on livestock diseases, and it will be the one lab with room built-in to securely hold large livestock such as cattle and hogs.

Plum Island already studies diseases such as foot-and-mouth disease and African swine fever, but NBAF will study other zoonotic diseases such as Crimean-Congo hemorrhagic fever, (a tick-borne disease), as well as the Nipah virus, Japanese encephalitis virus and Rift Valley fever -- just to name a few.

Along with its study of livestock diseases, NBAF also has the capability to produce vaccines. That will be a key component of the facility. Few pharmaceutical companies want to spend R&D on a foreign animal disease that has yet to land. NBAF will be expected to take a lead in diagnostic and vaccine development. The facility will have the capability to produce up to 100 liters of vaccines, which would be enough for a trial.

"We cannot just wait until we have the disease to develop the vaccine and production," Clavijo said.

Clavijo said having both BSL-3 and BSL-4 capabilities will allow NBAF to collaborate with other health institutions and federal agencies.

SITE CRITICISMS

Kansas officials aggressively lobbied more than a decade ago to get NBAF to K-State, beating out states such as Texas in the process. Still, leaders from at least a few livestock groups raised concerns early on about building the new labs in the middle of one of the largest livestock-producing regions in the world. A 2009 Government Accountability Office report questioned the logic of locating in Kansas, due in part to the risk of storing highly infectious pathogens in a region prone to tornadoes.

While it's a risk no one would want to see in the middle of Manhattan and the university, NBAF officials stressed the facility was constructed so the labs and waste facilities on the campus can withstand the force of an F-5 tornado.

"This building is a steel structure surrounded by concrete. There is lots and lots of concrete with the floors and walls," said Carlos Rodriguez, an engineering project supervisor on the construction of NBAF.

Bill Bullard, CEO of R-CALF USA, pointed out a 2010 report from the National Academy of Sciences that raised questions about the risks of an accidental introduction of foot-and-mouth disease. The U.S. has kept foot-and-mouth disease out of the country since 1929, and an accidental introduction would be financially devastating to the livestock industry.

"We are deeply troubled by this asinine facility in the heart of cattle country," Bullard said. He added, "You can minimize, but you can't prevent human error, and that's a very real risk based on past inadvertent releases of dangerous pathogens in other similar facilities. Even Plum Island experienced inadvertent releases."

Asked about those concerns by DTN, Clavijo pointed to several international standards related to biocontainment that NBAF will follow regarding the safety and security of anyone entering the facility. The security and safety standards in the labs go above international standards, he said.

"The risk of anyone taking any material is minimal, if not zero," Clavijo said. "The location of NBAF in Kansas is not a risk for anyone. We feel part of the community. We have a serious commitment, not just to our staff, but the community, to ensure that everything is done the way it is supposed to be. Everyone who works here lives within 30 miles of Manhattan."

Also, it should be noted that while NBAF was built in a region with a lot of livestock, most U.S. BSL-4 labs studying human diseases are located near major cities, including Boston, San Antonio, Richmond, Virginia, and the Washington, D.C.-Baltimore area.

Now in a world coming out of one of its worst pandemics, and allegations that COVID-19 sprang from a lab in China, scientists and staff at NBAF during the past couple of years have found themselves reaching out to residents in local articles and radio interviews. Most of the reporters at last week's briefing were local media and a couple of agricultural publications. NBAF leaders focused on the technology, procedures and culture around safety and assurances in place at the facility.

BUILT-IN PROTECTIONS

A BSL-4 lab is given that designation based on the security levels built into the facility. BSL-4 labs require special procedures regarding air flow, showering and pressurized security doors. Researchers will be required to wear fully contained suits with dedicated air supplies from a series of air hoses throughout the lab space.

A big part of the level-4 lab is the necropsy room where researchers will conduct autopsies on animals to study the specific impacts of diseases. Given that researchers will be using sharp cutting tools while wearing air-pressured biosecurity suits, it will take a lot of training and testing procedures to ensure protections are met. Procedures and trials will begin with "clean animals" and then move to less-risky pathogens before stepping up to the highest levels of pathogen risks.

"When you are in here, nothing gets rushed," said Charles Lewis, the team lead for the BSL-4 lab for APHIS.

If they aren't already, NBAF researchers will grow accustomed to frequent showers as well. Scientists who work in the BSL-3 and 4 laboratories could find themselves taking potentially as many as 20 showers daily, lasting 5 minutes each, depending on their work and movements.

When it comes to destroying bio-contaminates, NBAF also has the "world's largest waste-water thermal decontamination system." Effluent from each of the labs flows to one of 11 basement tanks, each capable of holding about 9,000 gallons of water waste. Tanks are dedicated to different labs and spaces in the facility. Once heated to kill pathogens, the wastewater is filtered, then ends up in a wetlands chamber before eventually ending up in Manhattan's wastewater.

Livestock carcasses from the laboratories will also flow into two separate tanks where the muscle and bones will be ground and pressure cooked. What remains will be a slurry that will end up in a barrel then again heated down to ash. Other hazardous waste from labs will be incinerated as well.

On a tour of the facility, operations engineers pointed out the giant manifolds for nearly 1,000 highly efficient particulate air (HEPA) filter systems used in the facility. Engineers also highlighted various airflow and pressurized air systems in the laboratories.

STAFFING UP

It will take time to fully staff up the science mission and shift from Plum Island to Manhattan, possibly a couple of years. No animals or equipment will transfer from Plum Island, but a chain of custody has been developed for pathogens.

"We don't do anything to move into science until we feel everything is safe and secure," said Ken Burton, deputy director of the facility.

NBAF currently has about 280 employees but expects there will be about 400 employees when fully staffed and the science mission develops. While a few staff at NBAF have come from Plum Island, NBAF officials said only a small group of workers chose to relocate. At some point after NBAF is fully operational, USDA will start to close the Plum Island labs.

To expand the group of scientists who might work at NBAF, the facility has started working with researchers at several universities to develop fellows. APHIS has a lab training program the agency is developing with several universities and colleges as well.

ANIMAL CARE

In the animal care areas -- which also have showers and special entry rooms for workers -- the facility has an array of pens in sealed rooms that ensure the one-way flow of livestock in the facility once they enter.

"I've never been able to have press in one of our facilities," said Maggie Behnke, NBAF's attending veterinarian, standing in the facility's largest single livestock pen. Behnke added, "I don't want you to leave concerned about what happens here."

Behnke explained the labs have an animal-care committee that will conduct reviews of the facility and the management of animals. An important aspect of livestock research is to try to make sure the animals are comfortable with their surroundings and care.

"We don't want them to be frustrated," Behnke said. "We want them to be as stress-free as possible and be in as typical a situation as possible."

For more on NBAF, visit https://www.usda.gov/….

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

May 24 2023 - DTN Retail Fertilizer Trends

OMAHA (DTN) -- Average retail prices for most fertilizers were lower again the third week of May 2023, according to sellers surveyed by DTN.

Prices for five of the eight major fertilizers were lower compared to last month. Only one fertilizer was substantially less expensive. DTN designates a significant move as anything 5% or more.

Leading fertilizers lower in price was anhydrous. The nitrogen fertilizer was 10% less expensive compared to last month with an average price of $895 per ton.

Four other fertilizers (potash, urea, 10-34-0, UAN28) were slightly lower looking back a month. Potash had an average price of $627 per ton, urea $619/ton, 10-34-0 $739/ton and UAN28 $421/ton.

The remaining three fertilizers were slightly higher in price than a month ago. DAP had an average price of $829/ton, MAP $831/ton and UAN32 $514/ton.

On a price per pound of nitrogen basis, the average urea price was $0.67/lb.N, anhydrous $0.55/lb.N, UAN28 $0.75/lb.N and UAN32 $0.80/lb.N.

The total number of fertilizer carloads originated by Class I railroads for the week ended May 6, 2023, was 6,550 -- an all-time high since the Surface Transportation Board (STB) began collecting the data in March of 2017, according to the May 18 USDA Grain Transportation Report (https://www.ams.usda.gov/…).

For the first 12 weeks of 2023, fertilizer carloads were 2% fewer than the prior five-year average. However, in the weeks since then (weeks 13 through 19), fertilizer carloads have risen, and are now 3% above the five-year average.

"The rise in fertilizer carloads comes amid lower fertilizer prices from last year, higher corn plantings than last year and restricted upbound barge traffic on the Mississippi River due to flooding," the report said.

All fertilizers are now lower double digits compared to one year ago. 10-34-0 is 18% less expensive, DAP is 22% lower, MAP is 23% less expensive, potash is 29%, UAN32 are 30% lower, UAN28 is 34% less expensive, urea is 38% less expensive and urea is 41% lower compared to a year prior.

DTN gathers fertilizer price bids from agriculture retailers each week to compile the DTN Fertilizer Index. DTN first began reporting data in November 2008.

In addition to national averages, MyDTN subscribers can access the full DTN Fertilizer Index, which includes state averages, here: https://www.mydtn.com/….

Fertilizer costs in 2023 are considerably less than in 2022, according to Purdue University Extension crop budgets. You can read about it here: https://www.dtnpf.com/….

DRY
Date Range	DAP	MAP	POTASH	UREA
May 16-20 2022	1059	1083	878	993
Jun 13-Jun 17 2022	1046	1074	879	961
Jul 11-15 2022	1030	1052	885	861
Aug 8-12 2022	982	1032	881	812
Sep 5-9 2022	952	1009	878	800
Oct 3-7 2022	934	997	869	826
Oct 31-Nov 4 2022	930	981	857	826
Nov 28-Dec 2 2022	926	960	831	795
Dec 26-Dec 30 2022	885	891	765	751
Jan 23-Jan 27 2023	855	865	714	708
Feb 20-Feb 24 2023	836	834	673	666
Mar 20-Mar 24 2023	821	812	645	627
Apr 17-21 2023	826	812	643	626
May 15-19 2023	829	831	627	619

LIQUID
Date Range	10-34-0	ANHYD	UAN28	UAN32
May 16-20 2022	906	1529	634	731
Jun 13-Jun 17 2022	905	1516	630	730
Jul 11-15 2022	904	1449	606	701
Aug 8-12 2022	881	1365	578	678
Sep 5-9 2022	866	1357	579	658
Oct 3-7 2022	813	1390	565	652
Oct 31-Nov 4 2022	759	1426	583	680
Nov 28-Dec 2 2022	753	1416	583	681
Dec 26-Dec 30 2022	751	1325	573	679
Jan 23-Jan 27 2023	754	1237	523	630
Feb 20-Feb 24 2023	741	1124	470	554
Mar 20-Mar 24 2023	740	1036	429	514
Apr 17-21 2023	740	995	423	507
May 15-19 2023	739	895	421	514

Russ Quinn can be reached at Russ.Quinn@dtn.com

Follow him on Twitter @RussQuinnDTN

May 23 2023 - EPA Appeals Texas, Idaho WOTUS Freeze

LINCOLN, Neb. (DTN) -- The EPA has appealed a ruling from a federal court in Texas that put the Biden administration's waters of the U.S. rule on hold in Texas and Idaho, in a filing with the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

Currently the WOTUS rule is on hold in 26 states after injunctions were handed down by the U.S. District Court for the District of Southern Texas and the U.S. District Court for the District of North Dakota.

The complications and court wrangling over the Biden administration's rule are further muddied because most groups dealing with the waters of the U.S. rule are also waiting on a U.S. Supreme Court ruling in the Sackett v. EPA case that also is expected to provide more clarity over the federal government's permit authority under the Clean Water Act.

EPA appealed the Texas court's March 19, 2023, order that prevents the agency from enforcing WOTUS in Texas and Idaho.

U.S. District Judge Jeffrey Brown in the Southern District of Texas in Galveston put the injunction in place as the rule took effect on March 20 in the rest of the country. The injunction will remain in place pending consideration of motions to vacate the rule and send it back to the EPA.

Brown, a Trump appointee, denied a motion for a national injunction against the new rule sought by ag groups led by the American Farm Bureau Federation.

Texas and five agencies in the state filed a lawsuit against the EPA and the U.S. Army Corps of Engineers on Jan. 18 and a total of 18 interest groups including the agriculture, oil and housing industries filed suit a day later in the same court in Galveston.

There is one other WOTUS lawsuit pending in federal court in North Dakota. That court put the rule on hold in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

As of Tuesday morning, EPA had not filed an appeal to the injunction granted by the North Dakota court.

In the Texas case, Brown found Texas and Idaho have a "substantial likelihood" they would prevail on the merits of the case, would face a "substantial threat" that they would suffer "irreparable injury" without an injunction, that the threat of injury outweighs the "threatened harm" to the party they seek to enjoin and that the injunction was in the public's interest.

Brown, however, found the associations also party to the lawsuit, including the American Farm Bureau Federation, have not shown "irreparable harm" if a national injunction is not issued.

Brown's ruling was critical of the Biden administration's use of two tests -- significant nexus and relatively permanent -- when making jurisdictional determinations. The decision was seen as a setback by environmental groups that are defending the Biden administration's approach.

Texas argued the WOTUS rule effectively asserts jurisdiction "over non-navigable, intrastate waters based solely on whether the use, degradation, or destruction of the water could affect interstate or foreign commerce."

Texas said the rule "unlawfully expands" federal jurisdiction and "arbitrarily casts federal authority over a remarkable array of water features (or dry land).