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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UPDATE ON NORTHWEST ENVIRONMENTAL ADVOCATES V. EPA

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.

WCA Board Meeting

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/

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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.