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?

The Senate Voted To Overturn The EPA’s Clean Water Rule

Just Hours After A Separate Attack Failed, The Senate Voted To Overturn The EPA’s Clean Water Rule

Almost immediately after failing to pass a bill that would have required the EPA to rewrite its Waters of the United States rule, the Senate voted to advance a measure that would block the rule entirely under the Congressional Review Act.
The resolution, put forward by Sen. Joni Ernst (R-IA), passed with a simple majority vote of 55-43. The resolution earned the support of all Senate Republicans – with the exception of Susan Collins (R-ME) – and three Senate Democrats: Sens. Joe Donnelly (D-IN), Heidi Heitkamp (D-ND), and Joe Manchin (D-WV).
The vote came just an hour after the Senate failed to pass a separate bill, sponsored by Sen. John Barrasso (R-WY), which would have nulified the Waters of the United States rule – also known as the Clean Water Rule – and set strict parameters for the EPA and Army Corps of Engineers in rewriting the rule. Under Barrasso’s bill, the EPA would have been required to consult with private industry, as well as local and state governments, in redrafting the rule.

Senate falls a few votes short in bid to send WOTUS rule back to the drawing board

The Senate on Tuesday failed to secure the 60 votes needed to advance to a full debate on a bill that would put in check the EPA and its attempt to broaden the definition of Waters of the U.S.

Here’s the vote: http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=114&session=1&vote=00295#top

Water Seminar Artlce from Oct 22

Thanks to some very dedicated people, the State of Washington was able to host some of the top experts in the nation on Riparian Water Quality on October 22, 2015 at Fairfield, WA. Over 100 people were in attendance to listen to Dr. Tip Hudson, Dr. John Buckhouse, and Dr. Ken Tate, of U.C., Davis. Two employees of the Department of Ecology were also present.
Dr. Buckhouse stated that in a perfect world water regulations would not be necessary, however, where there is potential for harm to be done, guidelines are necessary. CWA is a federal law. Education of the public on water protection helps to eradicate the stereotypes of ag persons doing harm to water. Water management must be site specific, tailored to the specific area. There are a number of approaches: 1) through legal channels; 2) public education; 3) do nothing, which is a poor choice.
Dr. Buckhouse went on to say that a riparian area can be repaired using livestock as a grazing tool and using the philosophy of capture, store, and safe release. Fencing off water should be a last resort. There are lots of riparian area problems associated with fencing. Dr. Buckhouse finished his presentation by stating that balancing all of the needs of an ecosystem is tougher than rocket science.
Dr. Tate started his presentation by stating that rangeland management interests are with water quality, livestock grazing, forage production, etc. He states that balance is the necessary component.
Dr. Tate has been in California for over 20 years and has had years of research to support his theories. He states that over 80% of California surface water is derived from or stored on rangelands, and livestock grazing is a concern due to water quality pollutants caused by livestock grazing. Potential grazing pollutants include erosion, increased temperature, nutrient and microbial pollution. 303d listed waterbodies in California number 7294, with 324 of those waterbodies in grazing areas. This was a concern for the citizens of California which led to much of the research that has been done. Dr. Tate discovered that many of the areas that people thought would be problems, were not in fact that problem areas at all. Where people thought cattle were causing erosion issues in CA, studies showed that 77% of the erosion and sediment contribution was actually from roads, such as ranch roads, with grazing only contributing 1% of the sediment found. Roads and historic management were the major sources of sediment pollution. Dr. Tate stated that remedies are to be found with unique thinking. He added that erosion is a natural process, but we need to protect against the acceleration of erosion.
Another concern in the State of California were the levels of nitrogen and phosphorus. Dr. Tate discovered that the actual levels of nitrogen and phosphorus are well below ecological concerns and are not really a concerning factor. Dr. Tate teamed with another professor to take samples of bedrock liming waterways and they discovered that this “background” nitrogen or nitrogen leaching from rocks was a bigger source of N than cattle grazing. Background nitrogen and phosphorus – bedrock nitrogen- are the biggest sources. There are nutrient risks when animals are concentrated around water performing such activities as winter feeding and calving, wet corrals, but these risks can be managed in such a way to negate negative impacts. Feeding cattle away from waterbodies, setting up corrals without water flowing through them are both good ways to manage nutrients getting into water.
Other than background, or bedrock N, the bigger sources of N are more urban, such as septic pollution, etc. We cannot prevent natural events from occurring, but we can stop our contribution.
Another concern are microbial pollutants, which caused the waterborne disease outbreaks of 1989-1996. These microbial pollutants are Protozan- giardia crytosporidian and Bacteria – E. Coli, Samonella and Campylobacgter jesori. Protozoan cannot be killed with chlorination. Bacteria is an indicator that fecal matter and pathogens are present in water. E. Coli is not an indicator of pathogens. E. Coli is produced in all areas of nature, i.e., human, wildlife such as birds, feral pigs, elk, as well as domestic animals, etc. Wildlife have higher levels of cryptosporidium than do cattle. Cattle have low to no infectivity for humans.
The take home from Dr. Tate’s presentation was to limit risky behaviors such as high stocking rates that are not stable, leading to more manure and loss of vegetation, etc. The other take home is that all of these areas of concern have other sources, and that includes the natural and background sources. E. Coli background in nature is not 0! No background is 0, including the research finding that N is not 0. Areas of concern need to be identified, and they need to be real problems.
Background and natural are naturally occurring levels without human interference. It can be difficult to establish, but we need to look to the beneficial use. BMP’s are effective. Microbial pollutants are the most important to deal with in the Western United States when considering human health. The question being, how much of any pollutant is acceptable, from a policy standpoint. Exclusion fencing is high in cost, vegetation management for weeds, for N uptake, etc. Exclusion fencing is not always the answer and should not be the number 1 “repair” that all government turns to when they think there is a problem. Management tools should be utilized first.
Riparian grazing with enhancements should be the goal. Rangelands are great at sequestering microbial pollutants, with 90% of E. Coli retained in the fecal pat or trapped within 1 foot. Management is the key in keeping pats out of creeks. Moderate stocking rates mimic nature, especially with planting and vegetation. The key is finding balance and looking at the ecosystem as a whole, not just the riparian corridor.

2015 Connell High Career Fair

I was invited to speak at the 2015 Connell High School Career Fair today in the law and justice section. It was a great experience to try and connect with juniors and seniors trying to decide what they want to do after high school. I am not sure many of them wanted to be attorneys, but I bought info and candy, and tried not to be too boring. It was amazing to see some kids that I remember as babies now almost done with high school. It is crazy how time flies. There were three groups in my section, and we each had 20 minutes per session to speak about our profession. Pictured here are the Coyote Ridge speakers.

Career Fair 2015

Water Seminar with Dr. Tate and Dr. Buckhouse

Dr. Tate

The Water Seminar at Fairfield yesterday was a smashing success with Dr. Tate and Dr. Buckhouse, the leaders on Riparian Water Quality. This is Dr. Tate going over some of the research he has done in CA. There were over 100 attendees and some DOE employees as well. Dr. Tip Hudson and Bill Demer worked to put this seminar to together and Dr. Hudson gave the opening and closed the seminar.