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12 CapitalPress.com July 24, 2015 Current drought situation is worse than in 2005 DROUGHT from Page 1 Some growers are trying to direct water toward high- er-value crops like onions and potatoes at the expense of ir- rigating their hay, said Oviatt. “A lot of hard decisions are coming into play,” he said. The problem isn’t limited to surface water, as ground- water levels are also depleted, he said. Low soil moisture must be replenished with steady rains, as heavy but short-lived storms fail to fully penetrate the ground, Oviatt said. “To build that back up, it will take significant and slow precipitation events,” he said. Washington is facing a similar scenario, as 80 per- cent of its streams and riv- ers are below normal or at historic low flows, said Dan Partridge, communications manager for the Washington Department of Ecology’s wa- ter resources program. The current situation is worse than in 2005, which was Washington’s last state- wide drought, he said. The potential for signif- icant streams to run dry is “most certainly a possibil- ity,” which raises concerns about fish passage and mor- tality, Partridge said. In California, state wild- life managers have been con- ducting “rescues” in which they manually remove fish from shallow pools and move them to better habitats, said Jeanine Jones, interstate re- sources manager for the Cal- ifornia Department of Water Resources. Recent rainstorms that flooded Southern California haven’t provided much help in terms of irrigation, she said. “A lot of it ran off right away.” With stream flows “way low,” farmers are expecting to idle roughly half a million of the state’s nine million ir- rigated acres, said Jones. Roughly 75 percent of the precipitation in California occurs between November and March, so any eventu- al reprieve from the drought isn’t likely to come soon, she said. “We’ve got a long ways to go before we see any real ac- tivity on that front,” she said. Idaho is also dealing with low stream flows but farmers had anticipated even worse conditions earlier in the year, said Liz Cresto, hydrology section supervisor for the Idaho Water Resources De- partment. Irrigators are worried about the low water carryover in reservoirs that will be avail- able for 2016, but this year, spring rains delayed the need for stored water use, Cresto said. “We’ve been able to stretch the season more,” she said. Dan Wheat/Capital Press The Wenatchee River at Old Monitor Bridge on July 15 has less flow than normal for this time of year. New water rule has already generated 11 lawsuits RULE from Page 1 the statute as “waters of the United States, including the territorial seas.” The act leaves it to the EPA and Corps of En- gineers to define the term “wa- ters of the United States.” Existing agency regula- tions, which were last codified in 1986, defined “waters of the United States” as traditional navigable waters, interstate waters and all other waters that could affect interstate or foreign commerce, impound- ments of waters of the United States, tributaries, the territori- al seas and adjacent wetlands. The agencies’ new rule — which was published in the federal register on June 29 and becomes effective at the end of August — has already generat- ed 11 lawsuits against EPA and the Corps from 28 states, ag- ricultural organizations, other land-use industries and private landowners. And it has spurred legislation in both the U.S. House and Senate that would require the agencies to with- draw the rule and start over. Vague and broad The American Farm Bu- reau Federation recognizes the need for a regulation that lays out the rules of the road. Farm- ers need it for protection, and the agencies need it to admin- ister the Clean Water Act, said Don Parrish, AFBF’s senior di- rector of regulatory relations. “But this rule is tantamount to putting Braille on speed lim- it signs,” he said. The new rule sets up wa- ter users and landowners for agency “I gotchas,” he said. “They’re stacking the deck and holding the trump card, putting the public at a disad- vantage and putting farmers and ranchers at a disadvan- tage,” he said. The overriding problem is “how vaguely broad the rule is and how extremely narrow the exclusions are, and all (the exclusions) are qualified. Ev- erything is going to have to go through the agencies,” he said. Making the regulation vague was EPA’s theme, de- spite the agency’s stated inten- tion of defining and clarifying which waters are protected, he said. The rule adds another el- ement to navigable waters, making categorical changes to “tributaries” and “adjacency,” he said. Of particular concern is EPA’s new definition of a trib- utary — a water feature with bed, banks and an ordinary high water mark and flow downstream. Rainwater drain- ing out of a farm field would create such conditions, he said. “Damn near every field we farm is going to have a feature like that,” he said. Clean Water Rule Preamble: http://www2. epa.gov/sites/production/ files/2015-05/documents/ rule_preamble_web_version. pdf Federal Register: http:// www2.epa.gov/sites/produc- tion/files/2015-06/documents/ epa-hq-ow-2011-0880-20862. pdf better clarified, the rule as a whole is still unbalanced, as- serting too much jurisdiction beyond what was intended in the Clean Water Act, he said. “I’ve heard nothing good about the rule from the regu- lated community except the attempt to clarify which ditch- es are exempt. The proof is all these lawsuits,” he said. Overreach Carol Ryan Dumas/Capital Press Twin Falls Canal Co. Manager Brian Olmstead stands next a headgate and looks out over the Lowline Canal. In his view, a new rule addressing water of the U.S. leaves farmers, ranchers and water resource managers wide open to litigation. EPA has repeatedly stated that nothing is going to change for farmers and ranchers and the rule won’t create any ad- ditional issues for agriculture, but the Corps has already determined such features on farmland constitute waters of the U.S., he said. “It categorically changes everything. It makes a huge difference,” he said. In addition, the agencies expanded the definition of a tributary from the physical presence of bed, banks and an ordinary high water mark to “indicators” of those compo- nents, he said. “That’s crazy. This is what we’re fighting over … ‘indica- tors’ of water,” he said. The rule excludes as trib- utaries erosion features, in- cluding gullies, rills and other ephemeral — short-lived — features but only if they don’t exhibit bed, banks and an ordi- nary high water mark, he said. “The agencies are talking out of both sides of their mouth. They crafted exclu- sions in a way to look like they’re giving ag a lot, but they’re not,” he said. At the basis of the rule’s ex- clusions are the terms “water” and “dry land,” yet the agen- cies failed to clearly define either one, leaving extremely broad definitions of both, he said. Lack of these definitions “technically and effectively gives the agencies the dis- cretion to regulate where and when on the landscape they want to or it’s going to effec- tively give the courts the op- portunity to implement this Courtesy of American Farm Bureau Federation Example of corps determined bed, bank and ordinary high water mark. rule to the detriment of farmers and ranchers,” Parrish said. EPA assurances The final rule provides more certainty and detail on what waters are protected and what waters are not protected, EPA Office of Water Deputy Assistant Administrator Ken Kopocis said in an interview with Capital Press. The rule does not expand jurisdiction, maintains ex- emptions for normal farming, ranching and forestry practic- es and adds new exclusions that now carry the weight of law, he said. The definition of tributary has not been expanded and contains the same features used by the agencies today to make that determination, but it is now codified in the rule, he said. It has to have physical fea- tures “you can see, feel and touch.” In EPA’s experience “farmers know what are trib- utaries,” he said. EPA listened to concerns and clarified exemptions for ditches, changing the rule to focus more on streams and less on constructed water fea- tures, such as artificial lakes for irrigation water, irrigation ditches and stockwater ponds, he said. “We actually believe the new rule has more exclusions and exemptions today,” Ko- pocis said. EPA has heard the contin- ued concerns of agriculture and intends to work with the ag community as the rule goes into effect so there’s no mis- understanding, he said. “We think largely agricul- ture will be exempted from the current (new) rule as we go forward,” he said. “We like to say if you can plow, plant and harvest today without a Clean Water Act permit, this rule will ensure you can do that when the rule goes final,” he on the EPA website. Advocacy needed EPA did spend a lot of time trying to address the ditch is- sue, and a lot of ditches will be exempt if the rule is to be believed, said Norm Seman- ko, executive director of Idaho Water Users Association. If the agencies’ preamble is to be believed and EPA can be trusted to administer the rule correctly, a lot of irrigation ca- nals and drains are exempted, he said. The new rule exempts ditches with ephemeral flows that are not a relocated tribu- tary or excavated in a tributary and ditches with intermittent flows that are not a relocated tributary, excavated in a tribu- tary or drain wetlands. It also exempts ditches that do not flow, either directly or through another water, into traditional navigable waters. That should exempt a sig- nificant number of ditches, compared with EPA Region 10 (Alaska and the Pacific North- west), which now considers all ditches and canals waters of the U.S., he said. The association argued that all irrigation delivery and drainage conveyances be exempt as they were never included in the Clean Water Act, but EPA didn’t go that far to exclude all constructed waters. It did, however, recog- nize a lot of those ditches with exemptions and will hopeful- ly rein in Region 10 regula- tion, he said. “There’s cause for opti- mism, but there’s still going to be some interpretation. It’s going to be important for the regulated community to as- sert those defenses and remind EPA these exemptions exist,” he said. “I’m guessing EPA is not going to do it for us. We’ll have to be proactive and vig- ilant,” he said. While ditches have been The biggest problem is the definition of “significant nex- us,” Olmstead, the Twin Falls Canal Co. manager, said. Under the new rule, the term significant nexus means “that a water, including wet- lands, either alone or in com- bination with other similarly situated waters in the region, significantly affects the chem- ical, physical, or biological in- tegrity” of a navigable water. That could be applied to everything that runs downhill, any place in the West. And if environmentalists sue, a judge in a metropolitan courtroom many miles away will decide whether exemptions apply, Ol- mstead said. “The language really opens the door for lawsuits,” he said. Return irrigation flows could be considered a signifi- cant nexus, preventing the ca- nal company from controlling aquatic moss, for example. The definition could encom- pass potholes, irrigated pas- tures, overflow from a canal spill, he said. The new rule states for waters determined to have a significant nexus, they are a water of the U.S. if a portion is located within the 100-year floodplain of a jurisdictional water or within 4,000 feet of the high tide line or ordinary high water mark. All waters adjacent to a ju- risdictional water would also be covered if they are within 100 feet of the ordinary high water mark of a protected wa- ter; within the 100 year flood- plain and within 1,500 feet of the ordinary high water mark; or within 1,500 feet of the high tide line. According to EPA and the Corps, significant nexus and adjacent waters would not ap- ply to excluded waters. But the overriding question is whether the ag exemptions will hold up when officials are interpreting them, Olmstead said. Sakuma lawsuit grew from unusual circumstances PAY from Page 1 “It’s going to be low-hanging fruit,” she said. “It’s not going to be hard to prove that workers weren’t paid for rest breaks because industry-wide, they weren’t.” Seattle lawyer Marc Cote, who represented Sakuma workers in the class-action lawsuit, said the ruling will affect thousands of workers, but questioned whether it will inspire a wave of back- pay claims. The Sakuma lawsuit grew from unusual circum- stances related to a cam- paign to organize workers, he said. Most farmworkers won’t be able to find advo- cates, he said. “I think migrant farm- workers face a lot of barri- ers to getting access to jus- tice,” Cote said. Washington State La- bor & Industries spokesman Matthew Erlich said the de- partment will send out no- tices to employees about the ruling. In an amicus curiae brief filed with the court be- fore the ruling, Wixson and Wenatchee lawyer Kristin Ferrera asked that justices bar retroactive claims. They argued that farmers were fol- lowing guidance from gov- ernment agencies and that paying back wages could devastate growers. Wixson and Ferrera filed the brief on behalf of the Washington State Tree Fruit Association, Washington Growers League and Wash- ington Farm Labor Associa- tion. Cote argued that the court was merely interpreting, not changing, what the law had been all along and that ret- roactive claims should be allowed. The court further ruled that rest break pay must be calculated based on how much the worker would have earned in 10 minutes of pick- ing. Sakuma through a public relations firm issued a state- ment lauding its current pay system. “Today’s ruling acknowl- edges that we are doing things right,” CEO Danny Weeden said in a written statement. The Washington Farm Bu- reau emailed an alert about the decision. “The ruling will likely have drastic re- percussions throughout all of labor-intensive agriculture in Washington,” according to the organization. Don Jenkins/Capital Press file Sakuma Bros. Farms grows, processes and trucks its fruit from its operations in Burlington, Wash., in Skagit County. The Washington Supreme Court has ruled that farmworkers paid on a piece-rate basis should also be paid for rest breaks.