Clean Water Act
5:46 am
Thu August 16, 2012

Case Could Hamstring WA’s Control of Runoff Pollution

A small ranch in southeastern Washington is the site of some big disputes playing out between environmental regulators and farmers.

The question: How much control can the government have over pollution from agricultural runoff?

As part of EarthFix and Investigate West’s series on the 40th Anniversary of the Clean Water Act, Courtney Flatt takes a look at a court case that could determine how strictly the state regulates polluted rainwater runoff.

Joe Lemire’s ranch is a patchwork of pastures. Three-and-a-half acres here; another four nestled against U.S. Highway 12.

And winding through his property is Pataha Creek.

Lemire: “That’s the creek right there, of course.”

The 69-year-old rancher peers out at the stream. Right now, it’s barely visible through the brush. Cattle must zigzag across Pataha Creek to reach some of Lemire’s best pastures.

Lemire: “The cattle do go along the edge of the creek. That’s reed canary grass down there that’s growing.”

For six years, the Washington Department of Ecology asked Lemire to build a buffer fence around Pataha Creek. That’s because inspectors photographed manure and trampled streambeds along the creek. They say that opens up waters to potential pollution. Lemire disputes that claim.

Lemire: “They found us guilty of something we weren’t even doing.”

Lemire is challenging the Department of Ecology’s regulatory authority. The department asserts that it has the ability to monitor and prevent pollution. Chad Atkins works with the water quality program. 

He says this case is a big deal.

Atkins: “We think it’s absolutely critical to have this authority, if we’re going meet water quality standards to protect streams and rivers in Washington. It becomes pretty difficult to see how we get there without that authority.”

A judge recently found in favor of Joe Lemire. The case is now headed to the state Supreme Court.

Lemire says his roughly 29 head of cattle do not spend enough time crossing Pataha Creek to cause that much pollution. He says the cattle are afraid of the slippery bedrock beneath their hooves.

But the Washington Department of Ecology sees things differently. Ecology’s Chad Atkins says farmers voluntarily have fenced nearly 350 miles of Washington’s streams, in an effort to keep cattle out of water.

Atkins: “When cattle are in the stream corridor, they can impact vegetation. They can destabilize banks. They can cause erosion. There’s potential for nutrient and fecal coliform waste to end up in the water and on the banks.”

Atkins says runoff pollution is the main threat to Washington’s waters today.

Right now, in Washington, the Department of Ecology has power to monitor and regulate runoff pollution. If Lemire wins the case it could hamstring Ecology's efforts to control polluted rainwater runoff.

Oregon’s Department of Agriculture has the same authority as Washington. However, in Idaho, water monitoring is left mainly to the state Department of Environmental Quality, but most measures are voluntary.

Bart Mihailovich is with the environmental group Spokane Riverkeeper. He says environmental regulators’ authority is key to cleaning up water bodies statewide.

Mihailovich: “I think voluntary measures have a place, but they don’t work if there is no threat to something else happening.”

Agricultural groups have held exemptions from the federal Clean Water Act since its adoption in 1972.

The Washington Farm Bureau says farmers have many programs to prevent runoff pollution. Programs like no-till farming and providing cattle water away from streams.

John Stuhlmiller is with the Washington Farm Bureau. He says, in an age of ever-tightening regulations, voluntary measures are exactly what need to happen.

Stuhlmiller: “Let folks do the right thing. Help them understand what the issue is, and if there's a real threat or a real need to do something different, folks will step up to the plate and do it. Just provide the right incentives, rather than disincentives, in my mind, a heavy regulatory scheme."

Both parties say this case will have statewide, possibly nationwide, implications. Spokane Riverkeeper’s Bart Mihailovich says it would help close a gap in the Clean Water Act and reinforce Washington’s ability to monitor the rainwater runoff, also known as nonpoint source pollution.

Mihailovich: “You just have to make an example of what needs to be done. It isn’t just this one farmer, or this one piece of land, or this one little creek. This is a statewide nonpoint source pollution issue.”

For ranchers like Joe Lemire, it’s all about a way of life: the value of property and business. Because he fought the state’s order, Lemire would now have to build the fence without the government’s financial assistance. He estimates that would cost $37,000. Gaps to get his cattle through the fence would add to that total. Lemire says the costs are too high.

Lemire: “I don’t mind telling you a bit: I invested everything I ever saved for my retirement, plus a little bit of money I inherited into this place and the cattle. And I don’t have a lot besides this place. If the judge’s decision down here is overturned, and I loose this place, I’m basically out.”

The case heads to the Washington Supreme Court this fall.

Copyright 2012 Northwest Public Radio