AG & WATER QUALITY ADVISORY COMMITTEE MEETING

 

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.

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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.

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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Wolf Shot in Whitman County

On Sunday, October 12, Washington Department of Fish and Wildlife (WDFW) Officers received reports from Whitman County that a wolf had been shot southwest of Pullman. When our officers reached the scene, they determined that the wolf had been shot by a farmer who had pursued the animal for several miles in his vehicle after seeing it near his farm.

The incident occurred west of U.S. Highway 195. This area is in the Eastern Washington recovery zone, where wolves are delisted under federal law but remain listed as endangered under state rule.

WDFW Officers contacted the farmer, and a witness who believed a possible poaching incident had occurred. The shooting does not appear to have been associated with a defense-of-life action, nor did it take place under the statutory authority to shoot and kill a wolf that is caught in the act of attacking livestock in the Eastern Washington recovery zone.

We are actively investigating this incident and are in contact with Whitman County law enforcement officials and the county commissioners. Once the investigation is complete, the case will be sent to the Whitman County Prosecutor’s office for a charging decision.

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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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