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April 8, 2016 CapitalPress.com 3 EPA’s reversal on What’s Upstream rings hollow to ag groups Senators request investigation By DON JENKINS Capital Press The Environmental Pro- tection Agency reversed course Tuesday and said EPA funds should not have been used to finance What’s Upstream, a media campaign to arouse public support in Washington state for stricter regulations on agriculture. The change in position pleased farm advocates, but also left them asking why EPA allowed the campaign in the first place. “It’s nice EPA recog- nized what seems obvious,” said Washington State Dairy Federation policy director Jay Gordon. “But who ... de- cided this was acceptable for federal funding?” What’s Upstream, a partnership between the Swinomish Indian tribe in northwestern Washington and environmental groups, has been funded with near- ly $600,000 in EPA grants. The tribe used some of the money to hire a public re- lations firm, Strategies 360, and kept EPA informed as the firm crafted a campaign to influence a “malleable” public. Don Jenkins/Capital Press A billboard in Olympia advertises a website that advocates for stricter regulations on farmers. A tribe and environmental groups put up this billboard and one in Bellingham with a grant from the U.S. Environmental Protection Agency. The billboard fails to dis- close the funding source, as required by the terms of the grant. Until Tuesday, the EPA had refrained from com- menting on the campaign’s substance other than to say it did not violate prohibitions on using federal funds to lobby, even though What’s Upstream sought to organize a let- ter-writing campaign to state lawmakers. In a statement, the EPA took to task the grant’s orig- inal recipient, the Northwest Indian Fisheries Commission, and the Swinomish tribe. The commission, a consortium of 20 tribes, “sub-awarded” the money to the tribe. “The consortium made a sub-award for a campaign which should not be using EPA funds. We are in the process of correcting that,” an EPA spokesman said in a written statement. Efforts to reach the com- mission and tribe were unsuc- cessful. Two U.S. senators Tuesday sent a letter to EPA Inspector General Arthur A. Elkins Jr. requesting an investigation into how the grant funds were used. “We are troubled to learn that EPA’s financial assistance appears to improperly fund an advocacy campaign in Wash- ington state that unfairly tar- gets and demonizes farmers and ranchers,” wrote Kansas Sen. Pat Roberts and Okla- homa Sen. Jim Inhofe, both Republicans. Roberts, who chairs the Senate Agriculture Commit- tee, and Inhofe, who chairs the Environment Commit- tee, zeroed in on whether the letter-writing campaign amounted to illegally funded lobbying and political activ- ities. “The fact that the North- west Indian Fisheries Com- mission campaign website fully or partially funded by the EPA enables the pub- lic to use a script criticizing agricultural producers in an effort to influence lawmak- ers deserves immediate legal scrutiny,” the senators wrote. An Inspector General spokesman Tuesday said the agency doesn’t confirm or deny the existence of any on- going investigation. IG investigators have al- ready had a preliminary tele- phone conference call with farm groups, though it’s un- clear whether the office will conduct a full investigation. “Based on our conversa- tions with the people from the Inspector General’s Office, we think it is a pretty signifi- cant issue for the EPA,” said Save Family Farming direc- tor Gerald Baron, who partic- ipated in the call. Save Family Farming, based in northwestern Wash- ington, was recently formed to respond to critics of farm- ing practices. Baron said EPA should be held accountable. “I think it’s dishonest for them to try to put the respon- sibility for this on the grant- ee,” he said. “The record shows they were very close- ly involved in the content.” The tribe submitted regu- lar reports to EPA over sev- eral years as Strategies 360 polled voters and met with focus groups. The polling found that voters were large- ly unconcerned about water pollution and held farmers in high regard, though the public relations firm report- ed that opinions could be changed with the right mes- sage. EPA distanced itself from the campaign one day af- ter Roberts rebuked EPA for funding it. “The tone and content of this outside campaign does not represent the views of the EPA,” the EPA spokesman said. In a statement issued Mon- day, Roberts directed his ire at What’s Upstream billboards put up in Olympia and Bell- ingham, Wash., calling them “disturbing” and “malicious.” The billboards, which ad- vertise the campaign’s web- site, picture dairy cows stand- ing in a stream. The words say: “Unregulated agriculture is putting our waterways at risk.” The billboards do not dis- close that they were funded by the EPA, a standard re- quirement for all EPA-funded materials. Gordon, himself a dairy farmer in Western Washing- ton, said he was especially pained to see the billboard on a busy street in Olympia. “Seeing that right in the middle of Olympia, knowing it was paid for by taxpayer dollars, that was the one that hit me the hardest,” he said. “When you see it, you just go, ‘It’s just not fair.’” The environmental groups involved in What’s Upstream defend the campaign as public education, a permissible use of the EPA grant. “I still contend its use was for public education and was not a misuse of funds,” said Trish Rolfe, director of the Center for Environmental Law and Policy. “It (whatsup- stream.com) is an educational website. It doesn’t lobby for or against a particular piece of legislation.” The EPA did not elaborate on what its next step will be. The agency should act quickly, Baron said. Christmas tree checkoff Supreme Court ponders fed’s Clean Water Act advice raises $1.5 million Lawsuit affects By MATEUSZ PERKOWSKI landowner ability to challenge jurisdictional determinations Capital Press By MATEUSZ PERKOWSKI Capital Press Mateusz Perkowski/Capital Press A helicopter prepares to drop a bundle of Christmas trees into a truck at Noble Mountain Tree Farm near Salem, Ore., in this file photo. The industry’s newly established checkoff program has rasied about $1.5 million in recent months. so the program will ultimately accrue more than $1.5 million, said O’Connor. “I think the $2 million is achievable,” he said. The checkoff program faced a logistical challenge because the USDA and the National Christmas Tree Asso- ciation had different estimates of the number of producers, he said. Developing a comprehen- sive database of farmers often involved excluding companies that grow trees for landscap- ing or went out of business, O’Connor said. “We’re still cleaning up the lists we have,” he said. While the program isn’t just about “harassing people to col- lect money,” it does have the authority to audit companies and issue penalties, O’Con- nor said. “Growers who have not cooperated to pay will not get a free pass. We will pursue them.” The program walks a fine line in regard to enforcement, as resources devoted to such efforts aren’t used for promo- tions, he said. Roughly $750,000 to $1 million of the funds generated from last year’s crop will be dedicated to the 2016 advertis- ing campaign, which the Con- cept Farm agency of New York City has been hired to develop. “Their enthusiasm is just contagious,” Malone said. “It was tough to break the conver- sation off.” The specifics of the 2016 advertising campaign have yet to be determined, but consum- er research has shown the crop is associated with meaningful family experiences. Its big- gest drawback, meanwhile, is perceived as a lack of conve- nience. “We’ll be addressing that head-on,” O’Connor said. Cocept Farm is currently evaluating how to make the biggest impact with its budget, particularly during a “crowd- ed landscape” of advertising, said Gregg Wasiak, the firm’s growth director. Fresh-cut Christmas trees are associated with strong sentiments that the campaign will tap into, he said. “There’s an emotional element of the Christmas tree that we really gravitated toward.” When you ask a federal agency for its opinion, some- times the answer is more than just friendly advice. Each year, thousands of landowners formally ask the U.S. Army Corps of Engi- neers whether their properties are subject to Clean Water Act regulations. The govern- ment’s reply, known as a “ju- risdictional determination,” can have major consequences. If property is found to come under federal Clean Water Act jurisdiction, land- owners can’t proceed with a planned project without obtaining an expensive and time-consuming permit — if they can move forward at all. The U.S. Supreme Court is now pondering whether a jurisdictional determination amounts to a final government action that can be challenged by landowners in court, or if it’s merely the government’s opinion. According to the Corps, a jurisdictional determination is a form of guidance that has no legal effect. Under this interpretation, landowners cannot immediately file law- suits seeking to invalidate the agency’s findings. In this case, a Minnesota company was told it would have to obtain a permit to ex- tract peat moss from a wetland on its property. The Pacific Legal Foun- dation, a non-profit law firm that’s representing the com- pany, argues that landowners face a “catch-22” situation if they’re not able to fight juris- dictional determinations in court. “Your option is only to abandon the project at great loss, or go for a permit at great cost, or subject yourself to an enforcement action at great cost,” Reed Hopper, an attorney for PLF, said during recent oral arguments before lose is accurate, reliable in- formation provided to people about whether, in fact, these waters ... fall within the Clean Water Act,” Kagan said. However, the government may have a motive other than “the goodness of its heart” in issuing jurisdictional determi- nations, suggested Associate Justice Samuel Alito. “It expands their enforce- ment power because landown- ers who have a question about the status of their land have a strong incentive to ask for a jurisdictional determination,” he said. When the government finds that a Clean Water Act permit is necessary, “as a practical matter, that’s going to mean in most instances that the project is shut down,” said Alito. Chief Justice John Roberts pointed out that jurisdictional determinations give the gov- ernment “extraordinary lever- age.” In deciding that it has Clean Water Act jurisdiction over a property, the Corps can exercise its authority without going through the “formal enforcement pro- cess” and without subjecting its findings to “judicial re- view,” he said. “And that’s a significant enforcement tool for them. So they might be unwilling to give it up if they had the op- tion,” Roberts said. ROP-14-2-4/#T1D NEW ITEMS! 503-588-8313 2561 Pringle Rd. SE Salem, OR ROP-14-5-1/#24 Call for Pricing. Subject to stock on hand. Delivery Available ROP-32-52-2/#17 1 1 ⁄ 2 QT. BASKETS and (3) PINT TRAYS 14-2/#7 About $1.5 million has been collected from Christ- mas tree farmers in recent months to fund the industry’s newly established checkoff program aimed at promoting the crop. This first-ever collection of checkoff fees marks an important milestone for the Christmas Tree Promotion Board, which plans to devote much of the money to an ad- vertising campaign for the 2016 holiday season. “It feels positive to have reached our goal,” said Betty Malone, a farmer from Phi- lomath, Ore., and the board’s chair. The ability to effective- ly collect fees was one of the major uncertainties about a national checkoff program for Christmas trees. The trees are sold through many channels that are hard to track compared to other com- modities, such as milk, that are received at processing and packaging facilities. “Our industry is different from all the other checkoffs in that we have no first handler,” said Malone. The USDA originally ap- proved the checkoff in 2011 but then suspended it abrupt- ly in reaction to an online fu- ror that characterized it as a “Christmas tree tax,” putting fee collection into limbo for years. The 2014 Farm Bill re- quired the USDA to move forward with the Christmas tree checkoff, but the program wasn’t able to begin collecting the fees of 15 cents per tree un- til the 2015 harvest and sales season was finished. In documents establishing the checkoff, USDA often cit- ed $2 million as the amount the program was expected to generate each year. The Christmas Tree Pro- motion Board estimated that roughly 17-20 million trees are harvested annually, but relied on the conservative figure of 10 million trees in its budget for 2016, said Tim O’Connor, the program’s executive direc- tor. Fee collections for trees sold in 2015 are still ongoing, the nation’s highest court. The government claims this predicament isn’t created by jurisdictional determina- tions. Even if the Corps never issued such determinations, landowners would still face the same set of alternatives, Malcolm Stewart, an attorney representing the government, said. “It’s simply a choice that’s posed by the Clean Water Act,” he said. Hopper argued that juris- dictional determinations have real legal impacts because of the weight they’d carry in court if the government prose- cutes landowners for violating the Clean Water Act. Knowing violations of the statute are subject to criminal fines of up to $50,000 a day and three years in prison, he said. “We have an actual risk.” During the hearing, As- sociate Justice Elena Kagan repeatedly noted that other government agencies also of- fer advice to regulated entities in response to questions about taxes, securities and other is- sues. If the Corps decided not to provide jurisdictional determi- nations about a property’s sta- tus under the Clean Water Act, landowners would not actually gain anything, she said. “All you would do was to lose something, and what you