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/
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.”
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.
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.
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.
Bill Demers is a small-time rancher, grazing three cows on 65 acres of rolling pasture in south Spokane County.
It’s a job the retired juvenile court officer relishes. Demers’ cows – Sophie, Ginger Snap and Pistol Annie – trailed him as he drove a small tractor over the land this week, pointing out improvements that he’s made since moving there six years ago.
A healthy layer of sod grows on formerly bare ground adjacent to the North Fork of Stevens Creek. Demers re-established the grass cover by keeping his cows out of the intermittently flowing creek when there’s water in it. But he fears that state water quality requirements eventually will force him to fence off the creek, which he said would cost about $12,000 for a farming operation that nets $1,500 or less each year.
“It would put me out of business,” Demers said.
Fencing and water have always been hot topics in the rural West, and Friday was no different as 100 ranchers met to talk about how a recent state Supreme Court ruling might affect their livelihoods.
In the case involving Dayton rancher Joseph Lemire, the state’s high court affirmed the Washington Department of Ecology’s authority to regulate livestock pollution in streams.
The agency had ordered Lemire to put up fencing to keep his cows from trampling the banks of Pataha Creek and keep manure out of the water. The August court ruling also said the plaintiffs didn’t demonstrate that the fencing requirement qualified as a “taking” of private property.
“For landowners, this is a very big deal,” said Hal Meenach, president of the Spokane County Farm Bureau. “Areas close to waterways are the best pasture that a cattleman has. If they lose it, it’s a huge loss in the number of cattle that their land can support. With the Lemire ruling, it’s not considered a taking.”
Ranchers said they’re worried that the ruling will lead to aggressive enforcement.
Since the ruling, the Ecology Department has sent out “a wave” of letters to ranchers, telling them their cows are polluting streams, said Toni Meecham, president of the nonprofit Washington Agriculture Legal Foundation, who represented Lemire.
However, “this is nothing new that Ecology has this authority,” said Rachael Paschal Osborn, a water attorney and adjunct professor at Gonzaga University’s law school.
She said the ruling affirmed the state’s broad authority to regulate discharge into streams, including pollution sources such as cattle.
“Water is a public resource,” Osborn said. “Cows in streams can be very damaging to the ecology.” Taking the position that livestock should be allowed in creek bottoms regardless of impact isn’t reasonable, she said.
The Department of Ecology has been working to reduce livestock’s effect on streams for about 12 years, said Chad Atkins, a water quality specialist for the agency.
When livestock operations aren’t managed properly, they’re a source of coliform bacteria, excess nutrients and sediment in waterways, he said. They can also alter water temperature and pH.
Ecology officials look for visual evidence that livestock are affecting streams, such as bare ground, eroded banks, manure piles and extended livestock access to the water.
But Atkins said it’s rare for the state to take regulatory action against a livestock operator. Usually, the department’s employees and ranchers can work together to find solutions, he said.
“Good water quality and a healthy livestock industry aren’t mutually exclusive. You can have both,” Atkins said.
The regulatory action against Lemire came after years of inaction by the rancher, whose practices had been identified 10 years ago for having negative effects on Pataha Creek’s water quality.
State and federal programs can help ranchers pay for fencing and sources for watering cattle away from streams, Atkins said. But if ranchers take the money, they have to agree to leave buffers of streamside vegetation that cows can’t access.
Beginning in July, one grant program will require 75-foot buffers around salmon-bearing streams.
Osborn, the water attorney, said she wouldn’t be surprised to see legislative proposals next year to weaken the Ecology Department’s ability to regulate water pollution from cow pastures.
That’s indeed in the works, said Meecham, the attorney hired by Lemire. Fundraising is also underway to hire an Oregon State University range specialist, who would be available to consult with ranchers who are told their operations are harming water quality, she said.
In addition, ranchers want DNA testing of coliform bacteria, to indicate whether it’s coming from livestock or wildlife, Meecham said. Fencing cattle out of creeks increases habitat for rodents and birds, which can actually increase coliform bacteria levels, she said.
Demers, the rancher with three cows who organized the Spokane County Cattlemen’s Association meeting, isn’t sure where all this leaves him.
He’s in the Hangman Creek watershed, which has high levels of coliform bacteria and sediment in the water.
Six other livestock owners in the Hangman watershed have received notices from the Department of Ecology, saying that their practices are hurting water quality. Demers said he expects to get a notice, too.
And yet Demers, a 4-H instructor, said he’s a good caretaker of the land. He’s hauled junk vehicles out of the creek, along with old lumber and other debris. During the seasons when cows have access to the dry creek bed, he uses a hand shovel to remove the cow pies. The manure is stashed where the runoff won’t reach the creek, he said.
Each patch of ground is familiar to Demers, who recites the history of his efforts to get forage grass re-established there. He’s protective of the turf that keeps erosion from running into the creek. That’s something most ranchers share, Demers said.
“We’re grass farmers first,” he said.
• The ruling: The state Supreme Court affirmed the Washington Department of Ecology’s authority to regulate livestock pollution in streams.
• The reaction: Ranchers are worried the ruling will lead to aggressive enforcement, including costly fencing requirement
I am also the executive director of the Washington Agriculture Legal Foundation were I strive to help the ranchers and farmers protect their land and livelihoods. As well as, a member of the; Washington Bar Association, Benton-Franklin Bar, Benton-Franklin Young Lawyers Bar, American Quarter Horse Association, American Angus Association, American Hereford Association, United Braford Breeders, Washington Cattlemen’s Association, Franklin County Cattlemen’s Association and the Nation Foundation Quarter Horse association. I served as a director for the United Braford Breeders. I am a sponsor of the Franklin County Cattlemen’s and the Cattle Producers of Washington. I enjoy being an active member of the community and helping fellow farmers and ranchers.