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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Waters of the US

Quick reminder to landowners, WOTUS (Waters of the US) is a land grab by the Feds. PLEASE comment! Comments are due this month. You can turn in as many as you want. We are hoping for 30,000 comments from WA. The NCBA has a format that makes commenting easy. 
http://cqrcengage.com/beefusa/water

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Lawsuit against Yakima Valley dairies expands


yakimaherald.com
A lawsuit alleging groundwater pollution by four Lower Valley dairies has expanded potential liability beyond the dairy corporations to related entities and individuals owning property used by the dairies. A federal judge Friday allowed environmentalists to add one individual and several companies as defendants in the case that accuses the dairies of allowing cow manure to contaminate groundwater with nitrates, phosphorus, heavy metals and pharmaceuticals.

The dairies’ attorneys argued that the environmental groups waited too long to add new defendants and risked delaying the trial, but the judge disagreed, according to court documents.

“It is a bit frustrating that plaintiffs – particularly at this late stage of the proceedings – are continuing to make procedural moves that unnecessarily cause delay and increase costs,” Debora Kristensen, the Boise, Idaho, attorney who represents the dairies, said in an emailed response to questions Monday afternoon.

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Wills and Estate Planning

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Estate planning is for everyone. While most people do not like to think about death, it is a reality and typically unplanned. It is a lot easier on everyone, especially if you have a spouse, children and/or any relatives, if you draw up your own will and testament. I have been posted lots of information on estate planning, they should answer most of your questions. When you are ready to plan your estate give me a call and we will get started.

Laws on Probate in Washington State

Don’t put your head in the sand, get your estate planned.

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Washington law does NOT require a probate proceeding to be filed following death, regardless of whether the Decedent died with or without a Will (ie testate or intestate, respectively).  Probate in Washington is entirely discretionary, and probably only a few percent of deaths in Washington result in a probate being filed.  In Washington, if a probate is filed, it is because someone wants it to be filed, NOT because the law requires it.  By far, the most common reason for probate is that the Decedent died holding:

  1.     Any real property titled in his or her own name, or
  2.    Personal property (usually a cash or securities account) titled in his or her own name whose value exceeds $100,000.
  3.    There are other reasons, but the two listed above are the main ones.

Washington law, however, does require any last Will of a Washington resident Decedent to be filed promptly following death.  RCW 11.20.010 requires any person having the custody or control of any will to file said will within thirty days after he or she shall have received knowledge of the death of the testator.

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Estate Planning with a Trust

Estate Plannin

In a general sense, a trust is nothing more than an arrangement whereby one person agrees to hold property for the benefit of another.  A “testamentary trust” is a trust created under a Last Will and Testament. As such, a testamentary trust becomes effective only after the testator’s death and, even then, the will must be approved and admitted to probate.

A “living trust,”  is a trust created during the grantor’s lifetime, and the trust becomes effective immediately upon its creation. Living trusts are created by a written instrument, called a “trust instrument.” If the grantor is also the sole trustee, then the trust instrument is called a “declaration of trust,” because the grantor simply declares his or her intentions to the world. However, if someone other than the grantor is a trustee, then the trust instrument becomes a “trust agreement,” because the grantor and the trustee must agree on the terms of the trust.

Since living trusts are created during one’s lifetime, they can be either revocable or irrevocable. A “revocable trust” or “revocable living trust” is one that can be amended or changed, or even terminated, during the grantor’s lifetime. In almost all cases, it is the grantor who reserves this right when the trust is created. Even so, the trust becomes irrevocable upon the grantor’s death because only the grantor retains the right to amend or terminate the trust.

An “irrevocable trust” or “irrevocable living trust” is one that cannot be amended or changed, or even terminated, during the grantor’s lifetime. Once created, an irrevocable trust is governed exclusively by the terms of the trust instrument without any control by the grantor. For this reason, irrevocable trusts are created almost exclusively to obtain favorable income tax and/or estate tax benefits for the grantor.

Revocable Living Trust (RLT) are for the purposes of avoiding probate in Washington State, as well as making sure that assets are protected during life, protecting assets for certain beneficiaries, reducing estate taxes, avoiding will contests, etc.   A RLT will only govern assets that are held in the trust or that are conveyed to it.  This means that assets held in an individual name will be governed by the Last Will and Testament of the deceased.  A pour-over Will will govern the assets and those assets will still be subject to probate, even though the RLT will govern their distribution.  For a Trust to work, there must be a Will and and a funded RLT.

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