Loosing a Water Right- yes it can happen.

Washington’s water law includes a principle that a water right is perfected, defined, and  maintained through beneficial use. The expression “use it or lose it” is sometimes applied  to describe this western water law principle. Put simply, a water right may be wholly or  partially lost through extended periods of non-use. The return of unused water to the  state is called relinquishment. The purpose of relinquishment is to ensure that  Washington’s limited water sources are put to maximum beneficial use for all of  Washington’s citizens. To keep it simple, 5 or more successive years of non-use causes relinquishment unless you have good cause for said non-use. There are several categories described in RCW 90.14.140 that forgive the non-use.

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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.”

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

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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