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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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.”

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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The Farm Bureau Legal Foundation

The Farm Bureau Legal Foundation is another board that I sit on. It is made up of great people dedicated to the preservation of agriculture. Right now with everything that agriculture is facing, it is a hard job.

Here are a couple of pictures I received from a friend when I spoke at Mid-Year. Pictured with me is Elizabeth Howard, an attorney from Oregon.

New Rules over waters and wetlands

Once again the Federal government is trying to expand their jurisdiction, this time over waters and wetlands. EPA and the U.S. Army Corps of Engineers have published in the Federal Register a previously announced Proposed Rule to “… define ‘waters of the United States’ … for all sections of the Clean Water Act to mean: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands … Specifically, the proposed rule clarifies that under the Clean Water Act: … Most seasonal and rain-dependent streams are protected; Wetlands near rivers and streams are protected; Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant … The proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis … The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture … The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately …” For anyone that is interested, that means it is time to comment to the Feds that this proposed rule is unacceptable. Expanding their jurisdiction means more laws to deal with and more ag ground out of production. Please take the time to comment. I am not an NCBA member, but they are going to have a comment link for this rule at beefusa.org it is not up as of this moment, but should be up in the next day or so. This rule will impact anyone with property, so please comment.

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