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.
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.
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.
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.
On October 8, 2015 the Supreme Court recognized that Department of Ecology cannot use a determination of overriding considerations of the pubic interest (OCPI) to overcome water law as codified by the first in time, first in right doctrine.
Foster v. Ecology is a case that involves a challenge to a water right permit issued by DOE to the City of Yelm. The DOE decision authorized water withdrawals that exceeded minimum flow requirements. This authorized withdrawal impaired senior water right holders. DOE recognized that this authorization impaired minimum flows, but rationalized that under the OCPI, allowing the authorization was allowable. DOE acknowledged that even with mitigation to lower the impacts of this authorized withdrawal, the Yelm permit would impair minimum flows, which in essence impairs senior water right holders. Even after acknowledging the impairment, DOE argued that the authorized withdrawal would have a “net ecological benefit” despite the loss of water resources. The DOE director looks to WAC 173-563-080 to determine what an OCPI actually is. Said WAC states, “Consideration of the public interest by the director of the department of ecology shall include an evaluation of all uses of the river and its impact on the state of Washington. The uses to be considered include, but are not limited to, uses of water for domestic, stockwatering, industrial, commercial, agricultural, irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, thermal power production, and preservation of environmental and aesthetic values and all other uses compatible with the enjoyment of the public waters of the state.”
The Supreme Court’s majority saw through this novel interpretation of water law and went back to basics. Water law in Western States is really pretty simple, first in time, first in right. DOE has been doing end runs around this doctrine by using a test that DOE drafted. The Supreme Court has previously declared that the OCPI exception is quite narrow and cannot be used to issue appropriations, but can be used to issue withdrawals in certain situations. Earlier the Supreme Court looked at OCPI under the Swinomish case, where the Supreme Court looked directly at Washington’s water statutes and case law in determining the scope of DOE’s authority to use the OCPI exception to impair minimum flows. In the Swinomish case the Supreme Court looked at our State’s long-established approach to water law which follows “prior appropriation” and “first in time, first in right” doctrines. Washington water law does not permit any impairment, even one that is minimal, to a senior water right. Minimum flows are established by administrative rule and have a priority date as of the rule’s adoption. Withdrawals of water are permitted to impair minimum flows only under narrow OCPI exceptions and DOE cannot widen that narrow exception with a three part test of their own making which would allow for DOE to use the OCPI exception to reweigh or reallocate water in Washington.
In the Foster case DOE issues the permit to the City of Yelm pursuant to RCW 90.54.020(3)(a), which allows DOE to authorize withdrawals of water that impair minimum flows where it is determined that overriding considerations of the public interest are established by the applicant, here the City of Yelm. Foster then appealed DOE’s decision to the Pollutions Control Board (PCHB), which affirmed DOE’s decision, then appealed again to the trial court which also affirmed DOE’s authority to issue the permit. The Supreme Court then used their decision in Swinomish to analyze the statutory provision written into RCW 90.54.020(3)(a) which allows for DOE to issue a permit where said permit is negatively impacting the base flows or minimum flows necessary by simply stating it is in the consideration of public interest. As the Supreme Court stated in Swinomish, this is narrow exception and cannot be used to permanently impair senior water rights with earlier priority dates. The Supreme Court has the power to invalidate any agency rule or order the exceeds the agency’s statutory authority. The Supreme Court must look to legislative intent and give the plain meaning to ordinary statutory language and technical meaning to terms of art to determine if DOE exceeded their authority under RCW 90.54.020(3)(a). The Supreme Court in Foster determined that DOE did exceed their authority with the issuance of the permit to the City of Yelm.
Washington water law is concerned with injury caused by impairment of senior water rights. DOE does not get around the protections written in water law by claiming ecological injury, by using a test under OCPI that DOE drafted themselves. DOE was told by the Supreme Court that water law is supreme in this state and will continue to be so. WCA is a grass roots organization that has policy on its books to support decisions such as this one that uphold water rights.
This has been a good week in water law, first with the Washington Supreme Court ruling in the Foster v. DOE case where the Supreme Court recognized the importance of “first in time, first in right” and the “prior appropriations” doctrines on Oct 8. As of today, we have a favorable ruling on WOTUS. The 6th Circuit just issued a nationwide stay on WOTUS. This is a very positive step for water rights. See more below: