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.
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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