UPDATE ON NORTHWEST ENVIRONMENTAL ADVOCATES V. EPA

On June 18, 2015 before Federal Judge Ricardo Martinez the argument to dismiss the case ofNorthwest Environmental Advocates was heard. Jack, Amber, and Toni went over to Seattle as WCA is an intervenor in the case.  WCA has hired Western Resource Legal Clinic, a pro bono clinic based out of Lewis and Clark, to represent them in this case.

     This case was brought by Northwest Environmental Advocates to force the EPA to look to the ESA to protect listed fish species under the Clean Water Act (CWA). The CWA is just that, to protect clean water, not fish habitat. The CWA, at this time, does not have a component to protect listed fish species.  Both Timber and WCA have intervened on behalf of EPA, so both intervenors had the chance for argument on June 18, 2015.
    From a legal standpoint a motion to dismiss is hard to win as it does not take into consideration the merits of the case, only procedural issues. If there are any issues that cannot be dismissed outright, then the case continues. EPA argued that the case could not continue because Northwest Environmental Advocates has not brought their case in a timely manner and the statute of limitations has run on their claims. Timber and WCA argued that Northwest Environmental Advocates did not bring claims which could be heard before the Court as the Court had previously ruled, in similar type cases, that the CWA does not require the EPA to protect fish species. Both intervenors argued case law, and WRLC, on behalf of WCA, also argued the logistics of trying to combine ESA into the CWA. The time frames alone for both to be considered do not mesh. Northwest Environmental Advocates argued that nonpoint source pollution is not being controlled by EPA  and poses a huge risk to fish species if these fish are not considered under the CWA. The main argument for Northwest Environmental Advocates was if EPA does not consider ESA listed fish species when enforcing the CWA, EPA could potentially approve water quality standards that could kill fish. WRLC argued that the CWA is to protect clean water, the ESA is to protect listed fish species, they are not related documents and cannot be combined at the whim of Northwest Environmental Advocates.
   WRLC did a fantastic job on behalf of WCA. The Judge took all arguments under advisement and will rule at a later date. Federal Court has strict case schedules so the ruling should come quickly to allow the parties to stay on schedule with the next round of briefing.

NW Environmental Advocates vs EPA case

I am headed to federal court in Seattle with jack and amber as wca are intervenor in the nw environmental advocates vs EPA case on behalf of EPA regarding their ability to enforce the clean water act to protect fish listed under ESA.

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Wildlife Agencies Propose Overhaul of ESA’s Petition Process for Species Listings

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (“the Services”), the two agencies that administer the Endangered Species Act (“ESA”), recently published a proposed rule designed to improve the content and effectiveness of the species listing petition process. The proposed rule seeks to streamline the petition process for the Services and increase the quality of petitions by eliminating multi-species petitions and requiring petitioners to coordinate with the state agencies in locations where each species lives.

For more info click on their link:

http://www.natlawreview.com/article/wildlife-agencies-propose-overhaul-esa-s-petition-process-species-listings

June Ketch Pen Article‏

May has been a busy month for the legal field, especially with the Yakima Dairy Litigation coming to an end. As many know, Charlie Tebbutt was successful enough at Summary Judgment to force the Yakima dairies involved in the suit to resolve the remaining claims and enter a consent decree which is filed with the Court. Many will ask, what does this have to do with me? Well, quite a bit if you are in the ag industry. In the short term the consent decree only concerns the dairies that are listed. Those dairies will now be forced to double line all lagoons, increase ground water monitoring, install and maintain a certrifuge manure separator, pressure test and/or video inspect all transmission lines, install concrete aprons along all water troughs, locate silage areas away from impervious surfaces, a pilot project dealing with compost operations, follow a schedule to reduce nitrates in the soil, and provide bottled drinking water to identified homes in the area.
 This is a huge list at huge cost to already overburdened agriculture. It is thought that Tebbutt will then take the order to the Department of Ecology and try to use this order on other areas of ag. The win here for Tebbutt is that he can try and use government entities to enforce his agenda. The first order of business is for him to try and get this list included in the new CAFO permit process that is in the works RIGHT NOW!  To try and make sure that agency action is economically feasible to those in ag, it is important for all in agriculture to comment on the CAFO permitting process through Department of Ecology. Please pay attention to what is going on and make sure and comment on agency action that could potentially erode private property and water rights, and add increased costs to management and production in ag.
Department of Ecology is updating the nonpoint source pollution plan. Ag is considered a nonpoint source of pollution into water. Anyone involved in ag should try to review this proposed plan and make comments.
State Nonpoint Source Plan: http://www.ecy.wa.gov/programs/wq/nonpoint/NPSplan.html…
The link to the actual draft plan is under the picture on the right.
Ben Rau is the contact for this plan and his email is on this webpage. His phone number is 360-407-6551.
This plan, once complete, will be sent to the EPA. More information concerning this plan, and updates, can be found on my facebook page.
WCA continues to try and monitor and comment on agency actions like the ones I have listed above, and other agency action such as continued listing of alleged endangered species, changes to WDFW policy, DNR policies, the list goes on and on. It is very hard to keep up on everything as well as time consuming. Luckily Caroline Lobdelll with the Western Resource Legal Center has agreed to allow WCA to have another intern for the summer term to help draft comments which follow WCA policy, monitor the Federal Register, write white papers, and help review legal issues. Jack and I both come up with projects for the intern and help with intern oversite and work review. The intern we had last spring was amazing and did a fantastic job. Right now we are between interns and need work done, so Caroline has given us another student to work with to help work on issues due before our intern comes on board. I cannot say enough how much this intern has helped us in the last few months. When the intern project first started I do not think we fully grasped what we had, now that we do, we use up all of our allotted hours plus some. We share the intern with PLC and NCBA, but I feel that we probably have the most hours. Our intern will be helping to draft the WCA comments to the proposed new CAFO permitting process as well as the nonpoint source plan with DOE. Even with our internship program and the help of WRLC, the amount of hours needed to work on the water and private property issues are astounding. WCA has a very active board and membership and for that I am thankful, but please remember that even with WCA, individuals need to comment and act as well. Please pay attention to what is going on in our state.
The next DOE advisory group meeting is June 4 at Sprague. The meeting starts at 1 pm and I would ask that anyone with time to come and listen to what is going on. Vic Stokes has been a great co-chair and he will be at this meeting. If WCA members have questions or concerns that need to be brought up at this meeting, please let me know as I am the representative for WCA.
The overall theme of my article this month seems to be that we need membership involvement. Every paragraph I have asked for members to comment, pay attention, or become involved with one thing or another. I am also still asking for funding for our nonprofit groups like WRLC, WALF, Washington Farm Bureau Legal, and PLF. All of the groups that are out there working everyday to protect our private property and water rights. In last months issue I talked about the challenge that Franklin County issued for the other counties to donate to WALF and FB. I am once again reminding the counties of this challenge. WCA actually approved a line item for WRLC, PLF, and WALF. These groups are necessary to assist in the fights that non-ag groups keep throwing our way. We have a court date in June to hear argument on the EPA case that WCA has intervened on. Hopefully I will be able to have a positive article next month on how great it went, but no matter what, the positive message is that we will continue to fight to protect what is ours.

DOE Agriculture and Water Quality Advisory Committee meeting October 21, 2014

Meeting number 5 was in Lacey, WA on a very rainy day. Meetings usually last from 1-4, but this meeting needed an extra 30 minutes due to the long agenda we had all received. The meeting began with a presentation from Ginny Prest of WSDA on the Dairy Nutrient Management Plan.

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WSDA has two major goals- 1) to protect water and keep it clean and 2) to promote a healthy agri-business climate. The Dairy Nutrient Management Plan (DNMP) is governed by RCW 90.64 which is for permitted CAFOs both dairy and non-dairy. All dairies must have a nutrient management plan that is certified by the local conservation district. The WSDA tries to work in a clear, concise manner to educate, guide, and provide technical assistance. They work to promote good communication with the industry, related agencies, and other stakeholders. Equitable enforcement that is consistent and fair to all. Inspections take into consideration soil analysis, record keeping, etc. During an investigation, if an event has occurred, the investigator reviews the records, takes pictures, works with stakeholders. WSDA then sends their recommendation to DOE for comment, and once receives those comments moves forward with enforcement if needed. WSDA enforces “substantial potential to pollute” and actual discharge. 95% of all enforcement is addressed through informal action (warning letter, notice of correction) resulting in compliance. When a penalty is issued, many penalties end up going through a settlement process with a mitigation action and a lowering of the penalty.
WSDA has a Memorandum of Understanding with DOE to clarify rules and responsibilities. WSDA works within a penalty matrix that can be viewed at WAC 16.611. The CAFO permit itself is issued by DOE, so the CAFO itself is regulated by DOE. WSDA only does the DNMP part. WSDA does routine inspections every couple of years and has a good working relationship with the dairies.
The second presentation was by Bill Dewey on the Clean Samish Initiative. Bill Dewey works for Taylor Shellfish Farms and has shellfish beds himself. The Clean Samish Initiative is a cooperative effort to recover a watershed. Washington state leads the country in shellfish production. There are approximately 47,000 acres of tidelands which went into production in the late 1800s. There are currently 3+ million oyster and clam sales in WA. Shellfish are regulated by the Washington State Department of Public Health. Marine Fecal Coliform levels must not exceed 14 mpn/100 mL. For growing water there are 4 classifications- approved, conditionally approved, restricted, and prohibited. In prohibited areas, growers can only grow seed. The Clean Samish Initiative began in 2009. This was a multi-agency effort to address fecal coliform pollution in the Samish. Fecal was coming from every source. Human sources are a big threat. Issues include septic, rain events, wildlife, animals, etc. This initiative includes working with landowners in the area to fix problems. To take it a step further, they also implemented Pollution Identification and Correction Program (PIC) which is local agencies working together to identify and correct problems. Agencies include Skagit county, Conservation District, Samish Indian Nation, DOE, WA State Health, and Puget Sound Partnership to name a few. Currently there are over 100 Ag BMP projects completed, 110 septic systems repaired, and other projects which have led to fecal coliforms lower in the bay and less closures. They are also adding a chemical tracer to the current tools used in this project. Bill Dewey finished his presentation by stating that volunteer can work when everyone works together.
DOE then presented their idea of putting together a guidance document drafted to articulate good and risky behavior for livestock producers. This document will be drafted by the DOE advisory group and DOE, then presented to the group. This document will contain an overview of the law and the key principles to help promote compliance with water quality law. This document will recognize the importance of ag. This document will contain the criteria that DOE inspectors use so that ag can be assured consistency and be informed as to what is being looked at in determinations. This document will not be an absolute, but gives a good idea and direction for livestock production. A subcommittee was formed within the DOE advisory group and a few outside sources such as Ginny Prest and Tip Hudson. This document will be brought before the December meeting.
Kelly Susewind then talked about the watershed work DOE has been doing. This watershed work became known about when DOE sent the 30 letters to producers last year. These 30 letters and the outcry that followed partly led to the start of the DOE advisory group. One of the purposes of the DOE advisory group was to tell DOE how to do things differently. DOE has determined that there are 10 crucial steps that need to be done differently by listening to the DOE advisory group. Key changes are:
1) Increased education and outreach in the watershed.
2) Increase efforts to work with conservation districts.
3) Increased engagement with producer groups.
4) Letters to be specific on pollution.
5) Clear timeline for producers to contact DOE.
6) Letter to include offer access to records and information on pollution and DOE site visit.
7) DOE will send letters out within 60 days of observances.
8) DOE will give 30 days to make initial contact.
9) After 30 days, if no response, will send second letter.
10) DOE will send letters to the lessee if DOE can verify a lease.
These changes do not take away DOE’s rights and ability to send out their letters.
The last presentation on the Oct 23 meeting was by Heather Bartlett on the CWA required work and CAFO work. She started with the CWA as Section 319 for nonpoint source management needs to be updated. The EPA wants to know how effective state management of nonpoint source pollution is. This plan needs to be updated every 5 years and the Washington plan has not been updated in much longer than that. The updated plan must be turned in to EPA by June 30, 2015 or 319 money will stop. This plan will cover all nonpoint sources of pollution including livestock. The focus of the plan is on implementation and strength of partnerships- better coordination with state programs. The public is allowed to participate in the drafting of this plan through webinars which will begin at the end of 2014, public meetings in 2015, comments, and then the plan will be submitted to EPA. Currently DOE gets approximately 3 million in 319 money. Ben Rau is in charge of putting this plan together for DOE.
The last segment was on the redrafting of the CAFO permits. The CAFOs had a coverage up to 2011 which have been administratively extended to current. The current issues are how to determine which facilities are covered? How to make the permit more efficient and effective? The CAFO meetings with stakeholders will start Nov/Dec of 2014 with a preliminary draft of the document out in the spring of 2015. The final permit should be out Jan 2016. Jon Jennings with DOE is in charge of drafting and working on the CAFO permit.
Overall this was one of the most productive meetings we have had. There is still room for improvement, but we seem to be getting the point across that ag is a good thing, both for the environment and for the economy.

States Split On Scope, Fate Of EPA’s CWA Agriculture ‘Interpretive’ Policy

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Posted: September 5, 2014

States appear split on how to resolve concerns over EPA’s Clean Water Act (CWA) “interpretive” rule exempting many farming practices from permit requirements, with some states seeking agency guidance on how to implement the policy while others want EPA to scrap the rule due to concerns it unlawfully expands CWA exemptions.

The divisions — outlined in comments ahead of EPA’s July 7 deadline for public input on the rule — highlight ongoing disagreements about the rule, which took effect March 25. It exempts 56 agricultural conservation activities, such as brush management, herbaceous weed control, and fencing in crops, from CWA section 404 permit requirements by specifying they are “normal farming” measures exempt from dredge-and-fill permits.

The rule, which EPA issued alongside its proposed rule on the scope of the water law, has already drawn charges that it would impose new regulatory requirements on farmers. The rule prompted criticism because EPA issued and finalized it before taking public comment. EPA Administrator Gina McCarthy has suggested dropping the measure if it can agree with critics on an alternative approach.

In the early comments on the interpretive rule, some states, including South Dakota and Alabama, charge the list of exemptions is too narrow and would hinder farmers’ ability to use conservation measures that may yield environmental benefits.

Alabama’s Department of Agriculture and Industries says in July 7 comments that it “fears a great number of former NRCS’ practices will no longer be considered ‘normal farming practices’ by reducing the number of practices to 56.”

But other states, such as Washington and Michigan, say the list of 56 practices is too broad and would exempt some operations from 404 permits even if they may harm federally protected species and impair water quality.

“Some practices do not result in water quality protection and have the potential to significantly affect wetlands and other waters,” Michigan Department of Environmental Quality (DEQ) says in July 3 comments on the rule.

And Washington Department of Ecology (Ecology) says in July 3 comments that the rule could potentially create “more questions and less certainty” that state waters and their beneficial uses, such as use by fish and aquatic life listed under the Endangered Species Act (ESA), will be adequately protected.

“Without more specific agency guidance on when and where the exemptions are appropriate, we believe there is a real risk of undoing decades of salmon recovery efforts in the Pacific Northwest,” the comments say.

‘Flawed’ Rule

While Michigan DEQ urges withdrawal of the rule, Ecology says that while the rule is “flawed,” it is ready to aid in crafting a revised rule in cooperation with state and federal agencies that would “result in compliance with federal water quality protection” while giving landowners and farmers streamlined options.

The rule says that to qualify for the exemptions, such practices must be in compliance with Natural Resources Conservation Service (NRCS) standards. That requirement has prompted criticism from a broad range of stakeholders and other observers — including Senate Democrats and environmental groups — that it would shift NRCS into an improper enforcement role and create citizen suit liability for farmers and ranchers.

The New York State Department of Agriculture and Markets and New York State Department of Environmental Conservation say in July 7 comments that the NRCS practices are not regulatory thresholds and therefore should not be used as the basis of regulatory exemptions, that the rule will deter voluntary adoption of conservation practices, but also that it would exempt some practices that are not “normal” farming.

Under section 404(f)(1)(A) of the water law, “normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices,” are not required to obtain 404 permits.

The New York agencies say in their comments, however, that 10 of the 56 practices listed in the rule, including wetland restoration, wetland enhancement, aquatic organism passage, land reclamation: currently mined land and others, are outside the scope of what the state considers “normal farming, ranching and silviculture.”

Moreover, the state agencies say, those activities do not fall within EPA and Army Corps of Engineers guidance that the exemption is limited to “the activities named in the statute and other activities of essentially the same character as named . . .” and precludes those that are not of the same character.

But at least one state, New Jersey, is suggesting in undated comments submitted by the state’s Department of Environmental Protection on the rule that EPA and NRCS should “issue clear guidance to farmers, specific to each State, on how the interpretive rule will affect them” to ensure that the industry is clear that exemptions from 404 permitting do not necessarily void obligations under other state and federal laws, such as the ESA.

New Jersey says EPA should issue “Detailed guidance on the roles of the federal agencies in carrying out the interpretive rule as well as the definitions,” according to the state’s comments.

Rulemaking Process

While states are split over the scope and fate of the interpretive rule, many commenters want EPA to withdraw it and argue that the agency should instead pursue the policy through a new notice-and-comment rule.

South Dakota’s Department of Agriculture says in July 7 comments that the exemptions list is “too narrow” to cover a number of voluntary conservation practices, and asks EPA to withdraw the rule.

And a number of state attorneys general (AGs), led by Nebraska Attorney General Jon Bruning (R), in a July 7 letter to McCarthy urge the agency to withdraw the rule.

The argue that it is unlawful because it seeks to “establish new policies intended to bind decision-making by the Agencies and influence actions of the regulated community” and therefore must go through a formal notice-and-comment rulemaking under the Administrative Procedure Act (APA).

The letter comes as the Supreme Court is preparing to review an appellate ruling that would require EPA and other agencies to follow notice-and-comment procedures when they amend interpretations of their rules — which could create difficulties for the agriculture rule. The justices in June accepted certiorari in the linked cases Thomas Perez, et al. v. Mortgage Banking Association (MBA), et al. and Nickols, et al. v. MBA, et al, which test whether agencies must follow notice-and-comment rulemaking to revise their existing interpretations of rules.

The AGs’ letter says that the U.S. Court of Appeals for the District of Columbia Circuit in 2010 held in a ruling in Catholic Health Initiatives v. Sebelius that an interpretive rule must “‘derive its proposition from an existing document whose meaning compels or logically justifies’ its requirements.”

The AGs say, “In the present case, it cannot be argued that limiting the ‘normal farming activity’ exemption for conservation practices to those specifically identified by the Agencies and conducted in accordance with NRCS standards requirements derives from or is logically justified by any prior statutory text or regulatory provision.”

Hiring 3rd party professionals

This is a good article from Dairy Herd Management on hiring 3rd party professionals- like an attorney:

http://www.dairyherd.com/dairy-news/Tips-for-Hiring-Third-Party-Professionals-275358611.html

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