Update and Water and Ecology by Toni Meacham

Cows Feb 2019

 

One of my cousins told me that I am not getting enough of my original articles put out there on FB. I try (key word there is TRY) to write an article every month for the Ketch Pen, which is published for Cattlemen and Cattlewomen. The purpose of the article is to inform the WCA membership on issues that are new in the law, with an emphasis on water and ecology. In January I also hit on a few taxation matters. Here is my January article:

Two big pieces of news have come out of the natural resource arena: 1) We have a new director of the Department of Ecology as Maia Bellon resigned and moved to private practice with Cascadia Law Group. Cascadia Law Group is the self-proclaimed “preeminent environmental law firm in the Pacific Northwest, with unparalleled abilities to solve the most difficult environmental challenges facing the region.”  It was disappointing to see Director Bellon resign, but hopefully the progress that agriculture made under her reign can continue under the directorship of Lisa Watson who was appointed by Governor Inslee. 2) President Trump announced that his administration will overhaul the National Environmental Policy Act (NEPA). NEPA was enacted in the the 70s to ensure that environmental consequences were considered when governmental agencies were proposing any action. To say that NEPA needs modernization is an understatement. NEPA is used (or misused) in environmental lawsuits to stop or postpone government actions by green groups. The plan proposes to modernize NEPA by reforming the permitting process, inclusive of designation of a lead agency that would produce a single combined review, but the biggest improvement would be to require a two-year deadline on the process. Whatever the finished product looks like, one can be assured that there will be challenges from one side or the other, or potentially all sides. The ag industry is hoping the common sense values will prevail in this update which will allow environmental concerns to be considered, but not be the only consideration in the process. 
 
The on-going debate over Snake River dams still wages. More than 300 people showed up to Clarkston Washington at the beginning of January to discuss the future of the Snake River, inclusive of its dams, threatened salmon and steelhead runs, agriculture and power production.  Much of the discussion centered around the 115 page Orca Task Force report commissioned by Governor Inslee after he determined that Orca populations were threatened. The environmentalists seem to have simplified this issue by repeating rhetoric that power and transportation can easily be replaced, yet no plan of how has been proposed. It should also be noted that NOAA fisheries has publicly stated that some salmon and steelhead populations are recovering.  NOAA fisheries has also stated that dams do impact fish populations, but millions of dollars has been spent to study and reduce impacts and get the fish through the dams. Good science must be used in this debate about dams rather than generalized comments which are not based in fact. 
 
Although taxation is not usually what my monthly articles pertain to, there are two taxation issues that are of interest and should be noted by the WCA membership. The first is the fact that once again agriculture is being accused of failing to pay taxes. Senator John McCoy from Tulalip stated that farmers and ranchers “do not pay any taxes; none whatsoever.”  Luckily Pam Lewiston from the Washington Policy Center,  published a Policy Note in January 2020 titled “Yes, farmers pay taxes: A review of taxation imposed on Washington state farmers and ranchers.” This seven page document details all aspects of taxation imposed upon our ag industry. The conclusion is that “In fact, based upon the conservative estimates in this study, farmers and ranchers paid approximately $922,849,000 in taxes in 2018.”  Clearly everyone reading this article knows that the ag industry pays its fair share of taxes, yet once again elected officials did not take the time to make an informed comment and have tried to vilify agriculture. To see Pam’s full article go to   

https://www.washingtonpolicy.org/library/doclib/Yes-farmers-pay-taxes-PAM-Version-FINAL-1.pdf

My last taxation note is to briefly discuss the “Mansion Tax.” This is a tax that came into effect January 1, 2020. This is a tax that is based upon the sales tax of a home and paid at closing on a sale. The tax is collected through the Real Estate Excise Tax (REET) collection in the closing process. Most people do not sell enough real estate to know that the REET tax has increased, but for those of us that deal in real estate law, this is a big change. Under the new tax, properties that sell above $1.5 million dollars will go from being taxed 1.28% on the sale price to 2.75%. Homes that sell for more that $3 million will be taxed at 3% of the gross sales price. In Washington the REET tax is generally considered a Seller’s tax, meaning that in Washington, if you sell a home that has some value, you are giving the Washington Department of Revenue an even bigger piece of that sale. At first glance, this probably doesn’t impact many of our members, but the interesting part of this tax is that not many people knew about it. Very few protested it. Currently there is an exemption for ag, but to me, the quickness and efficiency of this increased tax should serve as a warning for the future. If Washington state determines in the future that they need more money, that ag exemption may go away.
As we look forward to spring and the best time of the year (calving season), please keep in mind that as you take pictures of those new calves with your cell phones or jot down notes in your calving book, take the time to jot down notes or take pictures of the environmental condition of your range. What wildlife is out there? What do you see? How does your riparian area look? Look at your land with new eyes. What needs to be improved? What are you doing well? Remember that we need to tell our tale of the positive environmental conditions that we bring. We are true stewards of the land and must continue to do the best that we can. I would challenge everyone to keep a log of what you see if not on a daily basis, at least once per week. The best defense is a good offense.  Take the time now to know what you are doing right so when a challenge comes, you are ready.

A Hirst Solution

Finally, after over a year of furious fighting, we have a Hirst solution. SB 6091 was fast tracked and approved as law January 19, 2018. Is it a great solution? No. What SB 6091 does is allows the people of Washington, especially those in rural communities, to move forward. Those elected officials that have worked so hard towards a Hirst solution, inclusive of Senator Judy Warnick, agree that this is not the resolution that they had hoped to see, but this bill purports to ensure that water is available to support development, allowing said development to move forward. One of the concerns I have heard about this bill, is whether those with an exempt well need to comply with the new law. Any permit-exempt well constructed prior to the effective date of the bill is deemed to have an adequate supply of water, meaning, in essence, it is grandfathered in. The bill does not address other exempt well uses, meaning livestock and other uses OTHER than home building was excluded. To help readers out, I am going to summarize what I feel are the pertinent parts of the bill. The bill itself requires applicants of a building permit to prove the adequacy of available potable water. Buildings that do not require potable water are exempt from the provisions of the bill, at least for now. That evidence may take the form of a water right, a letter from a water purveyor, or another form sufficiently verifying water. There are more strenuous requirements on proposed subdivisions and plats. There are 62 watersheds in Washington which are referred to as Water Resource Inventory Areas (WRIA). Each WRIA has been given a distinct geographical area on the Washington state map based on the watershed itself and a number. The WRIA map can be found by googling WRIA map, a government website will come up with a color coded map showing the Washington WRIAs. It is actually very interesting to review the map and understand your WRIA. I could probably write an entire article on WRIAs and the information we should all know about them, but that digresses off of the topic at hand. Of the WRIAs, 41 are not impacted by the SB 6091. Franklin County, where I live, is one of those areas. Those 41 WRIAs have no increased fees, no gallon limitations, and no mitigation requirements. The remaining WRIAs have restrictions to allow for a new well and in some cases, the limitations are still in the works. Some of those restrictions include applicants paying a $500.00 fee to the permitting authority. Applicants being limited to a maximum annual average withdrawal of 3000 gallons per day per connection (the previous exempt well statute was 5000 gallons) or 950 gallons with a potential restriction to 350 gallons in drought years for some WRIAs. . Specific WRIAs will be required to adopt a watershed plan, and the department is required to establish a watershed restoration and enhancement committee. The bill goes on to list the entities that will be invited to participate on said watershed restoration and enhancement committee. Said plans must come up with mitigation action to combat the negative impacts that exempt wells have on instream flow requirements by June 30, 2021. This bill also requires the department to begin two pilot projects to measure water use from all new groundwater withdrawals for exempt wells. This pilot project is to determine the overall feasibility of measuring water use for all new groundwater withdrawals. This bill requires the department to purchase meters to be used in the pilot project. The pilot project is to take place in the Dungeness water rule, WRIA 18, and the area in which the Kittitas County water bank program operates within WRIA 39. Reading between the lines, DOE wants to meter all water within their jurisdiction, with this being the first step to see if it is feasible due to the complexity of trying to meter all of the exempt wells in this state. Under the bill the department is required to submit a report to the legislature by December 31, 2020 and a subsequent report on December 31, 2027 to effectively report on how the bill is dealing with exempt well withdrawals.

The bottom line is that it is very important for individuals to understand what WRIA that they own land in and how that WRIA is impacted by SB 6091. The tools are available for you to gather the information needed. Water is too important of a resource to ignore the impacts that SB 6091 may have on you as a land owner. This Hirst solution was needed and is necessary to allow development in rural Washington, but is not the fix that those of us in ag were hoping to achieve. This solution is still viewed as a positive and those that worked towards this bill needed to be thanked for their hard work and dedication.

https://fortress.wa.gov/dfw/score/score/maps/map_wria.jsp

The annual WCA Convention

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The annual WCA Convention was last week at Suncadia. As usual we had some great speakers at the Water and Ecology meeting. Here is a summary of what we learned.

  1.  Madi Clark from Washington Policy Center discussed the Ag Center located in Kennewick, WA. WPC monitors how our elected officials vote on washingtonvotes.org. Madi spoke about Whats Upstream. This was a government funded hate campaign against Washington Ag. A few groups have been started to investigate the funding of the website and lobbying, including Save Family Farming. Whatsupstream.com proclaims to be about holding polluters accountable, but has targeted ag. It lists ag as a major contributor to water pollution. Intent is to further political agenda using $655,000 of taxpayer money. NW Fisheries Commission is one of the major players in this agenda. The purpose is to “educate” people on pollution, but it is believed that the real intent is to push buffers around all waterways. This thought process is stemming from believing that buffers increase water quality. There is no scientific basis for this thought. There is no scientific basis for this on the website. Historic pollution and natural causes are not accounted for on the website. Current research shows that the public has 76% trust in farmers and ag. There is a bill out there called the Regulatory Integrity Act that still needs to be voted on.
  2. Brandon Spencer- Brandon owns a ranch in Adams County, WA with the John Wayne Trail bisecting the ranch. This is the old Milwaukee rail bed. The Milwaukee went through bankruptcy proceedings, meaning that this specific rail line was never rail banked. Washington obtained this land through the bankruptcy proceedings by forgiving debt. Why does this pertain? Washington States Park Department is currently planning to spend $100 million to develop this trail. Due to the topography, this could be a drop in the bucket towards development. Portions of this trail are still in use by other railroads. Portions of this trail are owned by private landowners. The State is required by statute to put a cross state trail in somewhere, but using this trail is not feasible with the hindrances they are up against. The State is currently $480 million behind on maintenance on all State Parks. There is currently a limited operational budget. There are limited trail users and there has not been a study to this day on how many users there are on the trail. And no study on the economic impacts this trail would have, if any. One of the major issues to this trail is the fact that portions of the trail were deeded to the railroad by “reverter” deed. This means that if the land is not used for a railroad for one year, the land reverts back to the original land owner, successors, or assigns. The State is ignoring these deeds and continuing to move forward with development. With no oversight over the trail, no funds, and no clear ownership, this seems to be a waste taxpayer dollars. 
  3.  Scott Horngren from Western Resource Legal Center spoke on the program, inclusive of the intern WCA was able to receive earlier this year. The WRLC intern worked on an ESA paper comparing State and Federal law to use to help with reform attempts. WRLC also represents WCA in the Northwest Environmental Advocates v. EPA case filed in Federal Court. That case is currently in settlement negotiations. WRLC also helped WCA draft comments on Wildlife Damage Rules leading to a final rule that reflected some common sense. WRLC is currently working on a Clean Water Act/ESA case in Oregon that focuses on fish. This case claims that grazing in watersheds leads to increased stream temperatures, leading to fish mortality. The Forest Service has determined that there is no scientific basis for this allegation. WRLC further presented on CAFO and their impacts to Washington ag. Currently one of the biggest issues is who has the burden to prove a discharge? The EPA says ag has to prove lack of a discharge. Cattlemen say that EPA has to prove a discharge The CAFO rules are now tied in to WOTUS due to the the EPA trying to expand their jurisdiction. The Federal Courts have been holding EPA in check, but we must be proactive.
  4. Toni Meacham- DOE Updates:
Last meeting was September 20 in Spokane.
It was reported that the letters sent out last year by DOE did not get the response DOE expected. Why?
  • Education- having speakers like Dr. Tate, Dr. Buckhouse, and Dr. Hudson have allowed people to understand what pollution is and what pollution is not. The RCW that controls this type of pollution is 90.48.080 and .120. I always tell people to actually read the RCW. Many people are getting these letters and instead of responding to DOE, they are contacting attorney’s, the Livestock Water Quality Group, WCA, or whomever. If the Conservation Districts are contacted, then DOE is told.
  • Testing- many people have begun to test the water flowing through their property or have started test plots.
  • Resistance- DOE tends to pick on the same people. Many of the people that received letters this time have received letters in the past and made changes. They don’t want to remain a target.
  • The complaint system- DOE has an anonymous complaint system where anyone can turn in anyone else and the landowner has no right to find out who turned them in. The ag industry has asked for this system to change and DOE refuses. Many landowners are frustrated with this complaint system and refuse to respond anymore.
DOE will not expand their enforcement area this year, they will go back to Whitman, Columbia, Asotin, and Garfield Counties and have already done just that. They were supposed to expand to Stevens and Okanogan County but do not have the manpower as they did not have the response they thought they should have. DOE will be sending more letters out and may take enforcement action.
For example, in Whitman County, 10 letters went out in from July to September for evaluations that took place in March. 7 of those letters offered technical assistance, three of those letters were termed “Warning” letters. Many of the people that have received letters have had letters previously. Many of these people have already changed their practices, made changes in their use of the land. One of these people went from 200 head to 20. He has stated that DOE is not factoring in wildlife over which he has no control.
We need to tell our story!
  • Hirst- The Hirst decision came out of the WA Supreme Court and is a 73 page document that hinders the exempt well statute. The Hirst decision has taken Washington by surprise and has led to some Counties, Spokane and Whatcom, putting a moratorium on building and development permits. Currently we are hoping for a legislative fix to this Supreme Court decision. It is too early to tell what is going to happen, so the best thing we can do is to talk about how this decision impacts us as landowners and keep the discussion going. 

Spokane County adopts emergency ordinance to address controversial Hirst water rights decision

By Chad Sokol

chadso@spokesman.com

(509) 459-5047

 

Spokane County has adopted an emergency ordinance that officials say will prevent a moratorium on building permits.

The action is in response to the controversial water rights decision made by the state’s highest court.

“This is an important step to ensuring Spokane County follows the law, as interpreted by the Washington Supreme Court, while also protecting property rights of our citizens,” Commissioner Al French said in a news release Tuesday.

The Hirst decision, which took effect Oct. 27, stipulates that new developments can’t diminish water supplies to senior right-holders, or cause stream flows to drop below environmental targets set by the state. It primarily affects rural property owners who rely on wells rather than public water utilities.

Proponents say the decision protects fish and ensures that new homes will have an adequate water supply. A 2013 investigation by The Spokesman-Review found that dozens, perhaps hundreds, of people in rural parts of the county live without enough water for basic needs, much less the luxury of a green lawn. Some residents paid tens of thousands of dollars to tap into public water lines.

Critics, meanwhile, call the decision a major obstacle to obtaining building permits, as permit-seekers must prove there’s enough water in the ground to support a new development.

The county ordinance may reduce that burden of proof. In most of the county, the ordinance says, a new well can’t be drilled within 500 feet of any existing one. County officials believe that distance satisfies the requirements of the Hirst ruling.

It will remain difficult to obtain a water permit on the Little Spokane River watershed, which encompasses the northern part of the county and has a state rule setting minimum stream flows.

Courts generally treat such rules as senior water rights: Rivers are entitled to a given amount of water, and that right can’t be infringed upon by a new well in the area.

County spokesman Jared Webley said the ordinance “confirms that there’s not much we can do with an instream flow rule.”

Officials plan to hold a public hearing, to consider making the ordinance permanent, within 60 days.

Prospective builders rushed to submit permit applications before the ruling took effect. From Oct. 20 through Oct. 26, the county received 453 applications – about nine times the usual number, officials said.

The Supreme Court based its decision on Washington’s Growth Management Act, a 1990 law that has drawn numerous lawsuits, including four in Spokane County that resulted in a sweeping settlement in June.

State lawmakers said they hope to amend the law to ease any development restrictions caused by the ruling. But it’s quickly becoming a partisan issue, with “property rights” as a central talking point.

Republicans have said the decision infringes on property rights because it stalls rural development unless there’s a permitted source of water. The decision effectively eliminates the category of permit-exempt wells, which was created to avoid processing costs for small withdrawals of water.

“The policy fix would be pretty straightforward,” said Sen. Michael Baumgartner, R-Spokane. “You would simply amend the (Growth Management Act) to allow permit-exempt wells.”

But diminishing a neighbor’s water supply also infringes on property rights, said Rep. Joe Fitzgibbon, a Burien Democrat and chairman of the House Environment Committee.

Fitzgibbon said permit-exempt wells and “undeterred development” can put a strain on water supplies.

“Mike Baumgartner can make all the bills he wants, but he’s not going to make more water,” he said.

A better solution is water-banking, in which local governments buy and sell water rights, Fitzgibbon said. “I think the Legislature could build a framework and some certainty for water-banking, building on what Kittitas County has done.”

Spokane County officials have been working to create a water-banking program for several years.


Navigating through Waters of the U.S.

By Robert Thompson

Many of us have followed the controversial Waters of the U.S. (WOTUS) rule published by the Environmental Protection Agency and the U.S. Army Corps of Engineers. The rule amends the definition of “waters” in ways that (as reported in the Federal Register) further the two agencies’ stated intention to make the scope of the Clean Water Act (CWA) “easier to under-stand, more predictable and consistent with the law and peer-reviewed science.”

The EPA and the Corps of Engineers ostensibly wrote the rule in response to several cases questioning the agencies’ juris-diction by challenging the definition of “navigable waters” and adjacent wetlands in the CWA. The EPA and the Corps issued a proposed rule they argued would bring “clarity” and “efficiency” to determining the coverage of the CWA.

After an extended period for comments from the public, the WOTUS rule was issued in June 2015. The rule has proven to be one of the most controversial regulatory developments in recent years. Instead of simply clarifying the jurisdictional reach of the CWA, the rule has been viewed by agriculture groups as expanding it—pushing the regulatory reach beyond the banks of streams that are navigable-in-fact into areas viewed by many to be far from what is reasonable and intended under the CWA.

Many challenges were filed immediately after the rule was issued. Eighteen states challenged the validity of the rule on the grounds the jurisdiction of the EPA and the Corps doesn’t extend to waterways that aren’t navigable-in-fact.

The case immediately became entwined in a complex but important legal battle about where the case should be heard. The challenging states filed cases in the U.S. District Courts of various states. The EPA and the Corps took the position that the dispute was one of a narrow category of cases in which jurisdiction lies in the U.S. Courts of Appeal, which are just below the U.S. Supreme Court. The cases in the District Courts were consolidated in the Sixth Circuit Court of Appeals, which covers Kentucky, Michigan, Ohio and Tennessee. In February of 2016, the Sixth Circuit ruled jurisdiction in the cases does in fact lie in the federal appellate courts.

The rule has also been challenged in Congress, but no legislative solution appears to have the votes to override an expected veto by President Barack Obama. Legislative challenges are certain to continue after the presidential election and after a new president is inaugurated.

The coming substantive ruling by the Sixth Circuit will undoubtedly be only the next step in a long legal and legislative fight over the federal government’s reach in controlling the use of private property. The potentially expansive jurisdiction sought by the EPA and the Corps could have a significant and even determinative impact on those who own and operate land with wetlands, waters and streams that ultimately flow into traditionally navigable streams.

 

Robert (Bob) Thompson is a partner with international law firm Bryan Cave. He focuses on complex commercial business litigation in both state and federal courts throughout the U.S. He is co-leader of the Food and Agribusiness Industry Group and is a member of the firm’s executive committee.

Note: This story appeared in the October 2016 issue of Drovers.

Hirst

On October 6, 2016 the Washington Supreme Court released its decision on Whatcom County v Hirst. This is a long awaited decision as it was a challenge to the ability of a county to grant a building permit based on the availability of adequate water. Looking at the factual history of this case, a private party, Hirst, along with others, challenged Whatcom County’s land use regulations. This case began after the Supreme Court’s Gold Star Resorts ruling which requires counties to bring their comprehensive plan into compliance with GMA. Whatcom County then passed an ordinance which they believed did just that. GMA requires counties to protect both water availability and water quality. To insure water availability, Whatcom County developed a regulation based on DOE’s regulation that allows a permit applicant (in most cases) to rely on a private well only when the well site as “proposed by the applicant does not fall within boundaries of an area where (DOE) has determined by rule that water for development does not exist.”  Whatcom County Code 24.11.090(B)(3). Hirst then challenged the validity of the County’s ordinance to protect surface and groundwater resources. Our Supreme Court has ruled that GMA places and independent responsibility to ensure water availability on counties, not on DOE. It has been recognized that groundwater withdrawals can impact surface water flows, requiring both DOE and counties to consider this effect when issuing permits, either for DOE issuing for ground water appropriation, or counties for building and subdivision permits. The Supreme Court felt that requiring this extra burden on counties and DOE will protect instream flows. In the end the Supreme Court felt that Whatcom County’s comprehensive plan did not meet the GMA requirements to protect water availability.
 The Supreme Court issued this ruling in a 73 page document. Said document goes into detail on the history of Washington Water law. The original water code was enacted in 1917. The Court now states that scientific understanding of water resources has increased and the restrictions on Washington’s available water.  Any withdrawal of water impacts the total available water and must be subject to senior water rights and minimum instream flows.
  In the end the Hirst decision will mean greater government oversight when someone wants to develop their land or drill a new well. Under GMA local governments are tasked with protecting their local environments. The question becomes, at what cost to landowners?
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