Whatcom Works: July 2013

To: Mr. Ron Shultz, Ms. Jaclyn Ford

From: Vic Stokes, President, Washington Cattlemen’s Association

Date: December 27, 2012

RE: Comments from the Washington Cattlemen’s Association regarding the 3DT BMP Implementation Approach, Teams 1 & 2 Recommendations to the Directors, DRAFT

The Washington Cattlemen’s Association (WCA) would like to submit the following comments on the 3DT BMP Implementation Approach, Teams 1 & 2 Recommendations to the Directors, DRAFT. The WCA would like to voice its strong opposition to the 3DT DRAFT. The WCA believes the 3DT Draft represents a new layer of regulation and bureaucracy that will result is massive economic hardships for livestock producers throughout Washington State without any clear expectation of improving water quality.

The WCA is ashamed that the WSDA and WACC both supported a document that has such a strong bias against livestock grazing. The 3DT DRAFT represents the kind of narrow minded thinking that regulatory agencies all too often have when they spend their time talking amongst themselves instead of engaging the regulated industry and obtaining key stakeholder input. The WCA is extremely disappointed that all three agencies (Agriculture, Ecology and the Conservation Commission) would all support a document that demonstrates such a bias against livestock grazing and water quality.

The approach that the 3DT took clearly demonstrates the outcome the agencies hope to attain; regulations, restrictions and penalties. The WCA believes this document is a slap in the face to the livestock industry and will fight this DRAFT legislatively. Science was obviously something that the 3DT were not interested in; because there is no science or reference to research work conducted in the fields of managed grazing, soil science, plant physiology or livestock behavior or any other work conducted by WSU Extension. Instead of utilizing science the 3DT DRAFT relies upon unfounded opinion that is anti-grazing.

The 3DT DRAFT represents numerous examples of takings as the State Agencies (DOE, WSDA and WACC) all agree that limiting private property rights yields cleaner water. Nowhere in the 3DT DRAFT is a reference to a funding mechanism to compensate private property owners for their losses now, and into the future. This attempted deprivation of private property rights is a per se takings and will be fought to the end. The 3DT DRAFT clearly demonstrates the State’s inability to clearly communicate with landowners and their true motives and intentions to exclude landowners in this critical process. The 3DT DRAFT should wait until the Supreme Court Rules on the LeMire Case. The Court’s decision on the LeMire Case will significantly impact water quality regulations one way or the other. The State was told in Columbia County Superior Court in the LeMire Case that they (the State) must be able to prove pollution prior to regulating the landowner. RCW 90.48.120 does not obviate the State’s requirement to prove pollution.

The 3DT DRAFT as presented is inviting litigation from livestock producers against the State since BMPs that create a large economic hardship on landowners constitute a takings. Buffers that take private property out of production and still require the private property owner to assume all costs associated with the maintenance and operation of the buffer (water, taxes, weed control, etc..) creates annual long term takings. Unmanaged buffers bring with them many unintended consequences that are regulated by other agencies.

The issues around buffers and private property were one of the main issues identified in the Ruckelshaus Center Critical Areas Ordinance discussions. There was and remains agreement throughout all of agriculture that regulatory buffers were and are unacceptable to private landowners. The 3DT DRAFT attempts to directly circumvent the Ruckelshaus Process by mandating unknown and potentially more restrictive BMP’s instead of allowing the Ruckelshaus Process to succeed.

The WCA would like to know how landowners can be proactive when they do not know what the standards are they are trying to meet? The key to achieving water quality improvement is having attainable goals. Both landowners and regulators must know what the finish line looks like. The State is mandated to protect existing uses in WAC 173-201A-600; Use designations — Fresh waters; (1) All surface waters of the state not named in Table 602 are to be protected for the designated uses of: Salmonid spawning, rearing, and migration; primary contact recreation; domestic, industrial, and agricultural water supply; stock watering; wildlife habitat; harvesting; commerce and navigation; boating; and aesthetic values.

WAC 173-201A-020 defines a "Nonpoint source" means pollution that enters any waters of the state from any dispersed land-based or water-based activities including, but not limited to, atmospheric deposition; surface water runoff from agricultural lands, urban areas, or forest lands; subsurface or underground sources; or discharges from boats or marine vessels not otherwise regulated under the National Pollutant Discharge Elimination System program. Why does the 3DT DRAFT only focus on livestock and none of the other non-point contributors?

The WCA believes the Department of Ecology (DOE) is abusing the authority granted to them under RCW 90.48.120 Notice of department's determination that violation has or will occur… as the DOE uses “windshield surveys” for regulation. The WCA does not believe that the regulatory agencies understand cause and effect enough to be able to properly apply a simple “windshield survey”. In photographs 11 & 12 (windshield survey) the same conditions presented occur in nature in areas that livestock have never been present. The 3DT DRAFT would like livestock producers to believe that only livestock create water quality problems.

The WCA requests that the State incorporate the 2008 5^th Circuit Court of Appeals Decision in the case of National Pork Producers v. U.S. Environmental Protection Agency (EPA) when they (DOE) interpret RCW 90.48.120. The 5^th Circuit Ruling caused the EPA to withdraw its requirement for a Federal CAFO permit if a facility intended to discharge; this requirement needs to be incorporated into RCW 90.48.120. The WCA believes the DOE should be required to apply the same case law that the 5^th Circuit passed down in 2008 in Pork Producers, DOE. This would result in the DOE not being able to regulate “substantial potential to pollute”. The 5^th Circuit Ruling requires a causal link to the operation and pollution. The WCA believes that the Clean Water Act (CWA) provides a comprehensive liability scheme, and EPAs attempt to supplement this scheme is in excess of its statutory authority. The Court declined to uphold the EPA's requirement that CAFOs that propose to discharge apply for an NPDES permit." These cases leave no doubt that there must be an actual discharge into navigable waters to trigger the CWA's requirements and the EPA's authority. Accordingly, the EPA's authority is limited to the regulation of CAFOs that discharge. Any attempt to do otherwise exceeds EPA's statutory authority. The result of the 5^th Circuit ruling is that EPA cannot impose a duty to apply for a permit on a CAFO that 'proposes to discharge' or any CAFO before there is an actual discharge." RCW 90.48.120 poses a major challenge to livestock operators as it authorizes the DOE to regulate on a “potential violation”. This concept is inherently flawed. It is important to remember that the State is also obligated to maintain minimum flows to satisfy stockwatering requirements for riparian stockgrazing operations in RCW 90.22.040 and as a result livestock operations have a legal expectation that their livestock may access surface water for Stockwater uses. In summary the WCA believes the State should adhere to the same standard and be required to demonstrate a causal link between pollution and a livestock operation prior to initiating a regulatory action.

The WCA would like to know why the DOE does not abide by;

WAC 173-201A-310; Tier I — Protection and maintenance of existing and designated uses.

(1) Existing and designated uses must be maintained and protected. No degradation may be allowed that would interfere with, or become injurious to, existing or designated uses, except as provided for in this chapter.

We believe that natural conditions and all other source contributors must be identified (livestock, septic systems, agriculture, residential, etc…). Once all contributing sources are identified, mutually agreed upon goals for addressing water quality can be set so the CRMP process can begin. DNA could be one of the tools the State uses to identify sources. RCW 90.48.120 does not alleviate the State’s requirement to prove a causal link between a livestock operation and pollution.

Sincerely,

Vic Stokes, President

Washington Cattlemen’s Association

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Comments from the Washington Cattlemen’s Association regarding the 3DT BMP Implementation Approach, Teams 1 & 2 Recommendations to the Directors, DRAFT