13 states sue over rule giving feds authority on state water

 JAMES MacPHERSON Associated Press
BISMARCK, N.D. – Thirteen states led by North Dakota filed a lawsuit Monday challenging an Obama administration rule that gives federal agencies authority to protect some streams, tributaries and wetlands under the Clean Water Act.
North Dakota Attorney General Wayne Stenehjem said the “Waters of the U.S.” rule by the U.S. Environmental Protection Agency and the Army Corps of Engineers is a “federal power grab” that is “unnecessary and unlawful and will do nothing to increase water quality.”
The rule – a response to calls from the U.S. Supreme Court and Congress for the EPA to clarify which smaller waterways are protected – was published in the Federal Register on Monday and takes effect Aug. 28.
According to the EPA, the waters affected would be only those with a “direct and significant” connection to larger bodies of water downstream that are already protected. It says the aim is to protect the waters from pollution and development and to safeguard drinking water.
The EPA did not immediately respond to questions from the Associated Press.
The lawsuit, filed in federal court in Bismarck, asks for the rule to be thrown out. The other states involved are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.
Republicans in Congress, and some Democrats including North Dakota Sen. Heidi Heitkamp, also have backed legislation to block the rules.
Stenehjem told reporters that the rule “illegally” gives authority to the EPA and the Corps and will add “red tape and other obstacles” to farmers, ranchers and landowners. Failure to get permits under the new rules will result in “steep penalties and even jail time,” he said.
He said farmers and other landowners could be subjected to federal oversight for even dry ditches on their land. The thousands of small ponds in the Upper Midwest known as prairie potholes also will be regulated, he said.
Stenehjem said North Dakota took the lead on the lawsuit because of its large agricultural sector, “so it just seemed like a logical place.”


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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Meeting Minutes

June 4, 2015 – 1:00 pm

With standing room only, every seat in the room filled, the regular meeting of the AG & WATER QUALITY ADVISORY COMMITTEE MEETING was called to order on June 4, 2015 – 1:00 pm in Sprague, WA.  Vic began the meeting as Co-Chair, but let the body of the committee know that this was his last meeting as chair; Aaron Goliday ended the meeting as the new Co-Chair.

Subcommittee Guidance Document:

Exclusion is not the only way to reach goals, but it is the suggested method by DOE.  The word “fence” was removed from the document.  Tribal interests have not engaged on the document so it may be pushed back.

The document will be sent out to anyone interested, as well as the staff.  It will also go out on the web as we want as much distribution as possible.

Note that this is a living document allowing for change.

Ecology’s Watershed Evaluations:

The Evaluations took place March 16 – 25, 2015.  DOE identified 262 sites as “concerned”, with a varied range of severity.  We will be sending out 20 letters as a result and 10 thank you letters will also be sent out.  In checking with CD’s, it was determined that 16 letters are to be sent out directly to the producers.  Templates of these letters will be on the website.

Approximately 24 dozen tillage sites were identified as concerning to DOE, included some construction, as well as some dredge site activity.

There is a 60-day window to get the findings out after the evaluation process.  DOE missed the timing this year to be able to present the first group to the DOE.  The letters will be more specific on the issues.

Also accomplished were 3 public workshops held, 8 meetings with CD’s, a blog, CD newsletters written, ecology website updated, A CD-hosted workshop was held in Asotin in February of this year.  DOE is planning follow-up workshops for early July 2015.

DOE information on the website provides the public with data.  Improved recordkeeping, increased efficiency and faster response time is necessary and possible due to the mobility of technology.  Mobile GIS research is to include base map, photos, field data, bread-crumb-trail, example BMP site, evaluation area, etc.  Not included are names, address, phone numbers, parcel data, email address and follow-up data from DOE. WCA did not support having all of this information on the website. Although this information is accessible to the public through freedom of information, WCA has taken the position that only some of this information should be on the website as pictures are a snapshot in time and may not reflect what sites currently look like. Anyone that wants that information should have to request it.

Updates:  In the CAFO permitting development, DOE will consider the Consent Decree entered in the Yakima Dairy case litigation as the consent decree has what DOE considers to be some positive points.  Comments on the non-point source update were due this month – June 5th.  WCA submitted excellent comments that were drafted by our intern then firmed up prior to submission.

The Clean Samish Initiative has stalled; stakeholders decided to do a 90-day push to make some progress.

WOTUS: DOE does not think that EPA jurisdiction really changes and will maintain business as usual.  The EPA has not been specific, but DOE feels that the 296 pages does not really change how Washington will govern the permitting process and overseeing of federal waters in Washington. WCA does not agree with this stance, but needs to take the wait and see approach. Clearly with the expanded definition of Waters of the US including connectivity, the jurisdiction of the Federal government is in fact expanded and this is not a positive for landowners.

NRCS – The natural water quality initiative.  Funding watershed improvements is mostly lagoon issues, but could eventually impact ranchers.

Round Table Discussion:

All DOE Advisory Group members were asked to participate and come up with issues for the next meeting. WCA, through Toni and Jack, added to the discussion regarding the fact that investigations are complaint driven and anonymous in nature for DOE and that needs to be explored on how DOE deals with these complaints. Many landowners are being targeted using this complaint process. This process needs to be fair, equitable, and transparent in nature and not a tool to try and get neighbors in trouble with DOE.

Best management is by principle not practice and DOE needs to stick to guidance and allowing landowners to have tools available to rectify any problems, not mandate how to solve problems. Director Bellon did state that she will not mandate no-till farming which was a relief to many people in the audience.

The Northwest Environmental Advocates vs. EPA is June 18th.

Next Meeting:  The next meeting be held in Yakima.


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:


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.

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.