Page 20 - November 2020 WCA Ketch Pen

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WATER AND ECOLOGY UPDATE
By Toni Meacham, Attorney at Law
Today we wrapped up the second meeting of the Ag and Water Quality Advisory Committee with Director Watson as the leader. This meeting went better than the last, but there are still some very legitimate concerns about the future of ag in Washington under this regime.
Between the last meeting and this meeting, the Capital Press published an article letting those in ag know that
even though President Trump had repealed the Obama WOTUS (WCA has been involved in extensive litigation surrounding the Obama WOTUS), the Washington Department of Ecology would be implementing the Obama WOTUS in relation to waters under state jurisdiction. To say this came as a surprise would be an understatement. The article was skinny on how, when, where, and who would
be implementing this course of action, and luckily Director Watson had it on the agenda for the meeting. Those in ag have been very concerned about what the implementation of the Obama WOTUS will look like for ag. This meeting was an opportunity to get our questions answered, or
to hear what the DOE answers were. The presentation revolved around DOE having jurisdiction on all non- navigable waters, meaning that with the new WOTUS
rule, it just shifts the permitting function from the Federal government to the State. DOE needs 6 ftes (this means
full time equivalent, or more employees to those of us that don’t speak government) to handle the increased workload that putting the Obama WOTUS into practice will bring to DOE. DOE does not have a permitting function in place
at this time so they will need these 6 people to process applications. Currently if a landowner needs to seek a permit, they would be getting an administrative order from the DOE because this permitting process is not implemented and cannot be implemented without funding and 6 ftes. My questions to Director Watson were simple- How does DOE plan to implement the Obama WOTUS? How does DOE think that this will impact ag? I did not
get a simple answer, more of a circular answer that I will
try to paraphrase. The DOE is operating under uncertainty based upon the upcoming election and current challenges, inclusive of those in the Court system. Because the Obama WOTUS was repealed and replaced with a much more restrictive definition, this change leaves a gap between what is a water of governed by the Feds and what is under the jurisdiction of DOE. By implementing the Obama WOTUS, DOE will “quadruple” or more the number of activities DOE wants to be able to permit.
Again, Jack Field said, back to Toni’s question, how does this impact ag. Again, no real answer. Jack brought up the hypothetical of a ditch, if someone wants to dig a ditch, clean a ditch, will they go through the process of getting
a permit? Director Watson once again said that DOE has jurisdiction over every surface water, so a person must get a permit before any discharge into state water. Any discharge must be permitted. If said person would have previously applied under Federal 404 for a permit, and there is no longer jurisdiction, now that person will apply to DOE for a permit. It was decided after this circular answer, that we received after asking the question twice, that DOE would get back to us on what activities may need to be permitted. Here is my take home- and don’t kill the messenger- DOE is going to want landowners to get permits for all activities that could potentially discharge into state waters, and
to enforce this they need 6 additional employees. So, if
you want to clean out a ditch, you will need a permit. If
you want to try to clean up wetlands on your property,
you will need a permit. If you need to stop the beaver
from damming up the stream in your field that is causing flooding, you are going to need a permit.
On the good news front, many of the ag commodity groups attended this meeting and heard what DOE had to say about WOTUS. Ag hasn’t had a meeting, but I feel pretty comfortable saying that I could feel the hostility towards the implementation of the Obama WOTUS through the phone line.
Ketch Pen www.washingtoncattlemen.org
November 2020