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.
USCA (June 30, 2015) – The United States Cattlemen’s Association issued the following statement on the announcement made by the U.S. Department of Agriculture Animal Plant Health Inspection Service (USDA-APHIS) to allow for importations of fresh beef products into the United States from regions in South America. The following may be attributed to USCA President Danni Beer:
“Once again, we are faced with an issue that has the potential to severely threaten the health and safety standards of the US cattle herd. We acknowledge the effort and work put in by APHIS staff on this issue, however, the proposed plan to move this notice forward is deeply concerning to producers across the country. Concerns have repeatedly been relayed from industry groups to the Administration on this proposed change in trade and we are disappointed that the choice has been made to move forward with the plan. ”
“Any opening of the U.S. market to the stated regions in South America is a step-back for the health of the US cattle herd. However, this issue stems not only from concerns regarding our domestic herd, but also to the political ramifications such a change in trade with this region would signal. Through this announcement, the U.S. would be rewarding countries that are proven bad actors in the international trade arena.”
“USCA recognizes the risk assessments completed and science being used by USDA-APHIS within the proposed processing facilities and supply chains in the specified regions. However, we simply do not trust Brazil and Argentina to implement the necessary protocol and safe handling practices on a consistent and comprehensive basis across all supply lines to ensure the safety of those fresh beef products shipped to the U.S. The margin of error when addressing Foot and Mouth Disease (FMD) is extremely slim, every precaution and necessary safeguard must be in place to ensure safe handling and transportation of product; we remain unconvinced of Brazil and Argentina’s commitment to this process based on their ongoing actions in the international trade arena.”
“Brazil continues to file cases against the U.S. and our trading partners at the World Trade Organization (WTO), Argentina is still in default on its substantial debt to the U.S.; why we would reward such actions by allowing for the import of their products to the U.S. is of utmost concern to producers across the country.”
“The precedent set by this announcement is troubling. This issue, while rooted in the realm of animal health, will be impacted by outside factors as well. The political influences that will come into play must not be ignored and rather addressed as a component of this rule. Our concerns on this proposed notice were relayed to USDA-APHIS during the recent USCA summer fly-in to Washington, D.C. and we will continue to work with those in Congress and the Administration to address producer and industry concerns.”
Established in March 2007, USCA is committed to concentrating its efforts in Washington, D.C. to enhance and expand the cattle industry’s voice on Capitol Hill. USCA has a full-time presence in Washington, giving cattle producers across the country a strong influence on policy development. For more information go to www.uscattlemen.org
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.
There was a great turnout tonight at the WCA Executive board meeting. A number of issues were discussed, including the brand program revenue, ADT, Sage Grouse and much much more. Go to Jack’s blog to see more. http://www.washingtoncattlemen.org/jacks-blog/
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.
State Nonpoint Source Plan: http://www.ecy.wa.gov/programs/wq/nonpoint/NPSplan.html…
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.
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.
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.”