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.