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CapitalPress.com
June 24, 2016
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Opinion
Editorial Board
Publisher
Editor
Managing Editor
Mike O’Brien
Joe Beach
Carl Sampson
opinions@capitalpress.com Online: www.capitalpress.com/opinion
O ur V iew
Washington CAFO plan offers silver lining
W
hile we hesitate to hail
any plan to increase
state regulation as
good news, the Washington
Department of Ecology’s plan
to overhaul how it regulates
the storage and spreading of
manure at dairies and other
concentrated animal feeding
operations has a silver lining
for producers.
Currently, DOE issues
pollution discharge permits to
only a small number of CAFOs.
The permits combine federal
and state laws and apply only to
pollutants discharged to surface
water.
The department has proposed
giving dairies that discharge to
groundwater only the option
of obtaining a permit based
solely on state law. That’s good
news. Because the permits are
based on state laws they can’t
be challenged in federal court,
the preferred venue of the
environmental lobby.
DOE has also proposed
exempting dairies with fewer
than 200 mature cows, an
acknowledgment that small
dairies would have faced inancial
hardships in complying with the
new rules.
By the state’s estimation, the
number of CAFO permits will
increase as much as 20 fold —
from about 10 today to as many
as 200.
And it won’t be cheap. A
permit would cost 50 cents per
animal unit, an adult cow and
calf, up to a maximum of $1,670
a year in 2017.
Ecology rejected a push by
environmental groups to make
dairies line manure lagoons
with synthetic material and drill
wells to monitor pollution in
groundwater.
Ecology says it’s trying
to balance protecting the
environment with allowing the
dairy industry to prosper.
None of this sits well with
Washington environmentalists,
who claim state oficials haven’t
been tough enough on agriculture.
They say they need to be able
to sue in federal court to ensure
accountability.
Please.
Washington farmers have
an entirely different point of
view about the severity of state
regulation of agriculture. We ind
it unlikely that a state regulatory
agency controlled by a governor
who is actively vying to be the
environmental conscience of the
Paciic Northwest would go easy
on polluters.
And even though producer
groups are somewhat encouraged
by what they know of the
permitting scheme, they don’t
expect it to come without
additional bureaucratic hassles.
“We’re already regulated,
and my concern is still the
sheer volume of regulations
this is going to add,” Jay
Gordon, Washington State Dairy
Federation policy director, said.
“It is an addition to what we’ve
already been doing.”
It’s always healthy to be
wary of new regulation. While
having environmentalists lining
up against it isn’t enough to
recommend the plan, it is the
silver lining in a proposal that
could have been much worse for
producers.
O ur V iew
International trade agreements will avert chaos
A
nyone who doubts the
value of comprehensive
international trade
agreements should go to France.
That nation recently
prohibited the importation of
cherries from any nation that
allows the use of the insecticide
dimethoate. Mind you, the
insecticide doesn’t have to be
used on cherries; just the fact
that it could be used in the U.S.
is suficient for French oficials
to block U.S. cherries.
We won’t comment on French
politics. We cannot comment on
something we don’t understand.
All we know is the French do
not allow their farmers to use
dimethoate, so they decided no
one should.
The fact that U.S. cherry
growers don’t use it is immaterial,
according to French reasoning.
They igure that if French farmers
can’t use it, nobody can.
Because only a relative
handful of U.S. cherries — about
a half a million dollars worth
last year — goes to France, the
impact will likely be small.
Rik Dalvit/For the Capital Press
But what would happen of
every country started making up
its own trade rules, based on the
vagaries of local preferences?
The answer is chaos. If Nation
A won’t allow a crop because
a certain pesticide is allowed
elsewhere, what’s to stop Nations
B, C and D from doing the
same — and adding pesticides or
practices to the list?
Soon U.S. farmers who ship
their crop overseas would face
a gridlock of prohibitions. So
would other farmers around the
world.
Before long, trade would
grind to a halt. Ultimately, food
shortages would emerge, but
not until irreversible damage
had been done to farmers and
ranchers.
All because an agreement that
sets the ground rules for trade
does not exist.
It’s not just about the French
and cherries. U.S. olive oil is
slapped with a $1,680 per ton
duty when entering the European
Union. Compare that to the $34
a ton duty the U.S. charges for
European olive oil entering this
country.
U.S. apples face a 7 percent
duty when going to Europe, while
EU apples face no duty when
imported into the U.S.
Now in the negotiation stage
is the Trans-Atlantic Trade and
Investment Partnership between
the U.S. and the European Union.
Besides addressing market access
and tariffs, it would harmonize
regulatory standards, such as
those related to food safety and
the use of pesticides.
Many critics of the TTIP
have emerged in Europe and
elsewhere. They prefer the
current system, which appears
to rely on sticking it to the U.S.
whenever and wherever possible.
Like the Trans-Paciic
Partnership that was completed
last winter, the TTIP will not be
perfect. But it will be much better
than the alternative, which is
chaos.
Wyden-Merkley Amendment: The dog that ‘don’t hunt’
By LAWRENCE A. KOGAN
For the Capital Press
D
uring late April, the
press announced how
a proposed Senate
Energy Bill amendment in-
troduced in the U.S. Senate in
February by Oregon Demo-
cratic Sens. Jeff Merkley and
Ron Wyden would provide
certain beneits to Klamath
Basin irrigators.
The energy bill, including
the amendment, S.A. 3288,
passed the Senate on April
20 and its fate now rests with
a Senate-House conference
committee. S.A. 3288 would
add new Section 4 “Power
and Water Management” to
the Klamath Basin Water Sup-
ply Enhancement Act of 2000.
Amendment
advantage
The Capital Press reported
that if S.A. 3288 were passed,
it would “allow the U.S. Bu-
reau of Reclamation to help
farmers in the basin deal with
reduced water supplies as a
result of future water-sharing
agreements and to provide
reduced-cost power for irri-
gation.”
It even quoted local ranch-
er Becky Hyde as emphasiz-
ing that the amendment would
“put regulatory assurances for
species back into place for ag-
riculture (and) resurrect some
of the power stuff (in the
KBRA).”
Indeed, the Herald and
News conirmed that “since
the expiration of some key
components of the Klamath
Settlement Agreements in De-
cember,” the Klamath Water
Users Association has worked
with the senators to ensure,
among other things, that “the
amendment authorizes mea-
sures irst proposed as part of
the 2010 Klamath Basin Res-
toration Agreement.”
S.A. 3288, if adopted,
would enable the Interior sec-
retary to enter into agreements
and contracts for purposes
of aligning water supply and
demand, mitigating environ-
mental effects of irrigation,
restoring Klamath Basin habi-
tats and tribal ishery resourc-
es held in trust and reducing
irrigation power costs.
Although S.A. 3288 osten-
sibly precludes the secretary
from carrying out activities
“that have not otherwise been
authorized,” it does not ad-
dress the secretary’s failure
to secure congressional au-
thorization or approval prior
to entering into the Amended
Klamath Hydroelectric Set-
tlement Agreement and new
Klamath Power and Facilities
Agreement previously execut-
ed on April 6. It also fails to
provide assurances that con-
gressional review and authori-
zation will be required before
the secretary enters into any
future interstate, intertribal
and intergovernmental agree-
ments.
Proposed language
Many Oregon and Cali-
fornia Klamath Basin resi-
dents and congressmen who
objected to Interior Secre-
tary Sally Jewel’s execution
Guest
comment
Lawrence A. Kogan
of the Amended KHSA and
new KPFA in circumvention
of Congress believe that the
Wyden-Merkley amendment
could certainly beneit from
additional language. We re-
cently proposed the inclusion
of clear language expressly
requiring all such DOI-con-
templated and previously
executed agreements to be
reviewed and ratiied by Con-
gress.
It has come to our atten-
tion, nevertheless, that the
leadership of the KWUA and
the Klamath Irrigation Proj-
ect’s Tulelake Irrigation Dis-
trict (represented by the same
legal counsel) are opposed to
the proposed language.
Apparently, KWUA and
TID are concerned that this
simple language change, if
adopted, would prevent the
DOI from executing the ba-
sin agreements (including the
dam removal-focused Amend-
ed KHSA) and dispensing the
welfare monies these groups
have long counted on for po-
litically supporting them.
Two additional S.A. 3288
provisions which have been
represented as helping area
farmers by “(enabling) the bu-
reau to do certain upgrades of
irrigation facilities” shed light
on KWUA and TID thinking.
One such provision would
authorize the Interior secre-
tary to enter into one or more
agreements with TID to reim-
burse up to 69 percent of the
operation and maintenance
(“O&M”) costs TID incurs to
run Pumping Plant D that ex-
punges excess project waters
TID receives from the Lost
River and Klamath Irrigation
District.
Another such provision
would authorize the BOR to
designate the KID’s $10 mil-
lion C Canal lume replace-
ment contract as engender-
ing emergency extraordinary
operation and maintenance
(EXM) work. The clear im-
plication is that if S.A. 3288
is passed, the latter provision
would render KID eligible to
receive up to 35 percent BOR
reimbursement of those costs.
This KID-focused S.A.
3288 provision, however, will
not achieve this result because
it curiously fails to designate
the C Canal lume replace-
ment as engendering “quali-
ied” EXM work.
In other words, it does not
designate KID as a qualiied
applicant for such treatment
— i.e., as having corrected,
during the past 10 years, all
Category 1 O&M recommen-
dations within 6 months of
BOR identiication, and all
Category 2 O&M recommen-
dations by the BOR’s initial
recommended date.
Recognizing this material
omission, we recently pro-
posed the inclusion of clear
language expressly designat-
ing the KID C Canal lume
replacement as a “Qualiied
EXM” work item. KWUA
and TID are similarly opposed
to this language change, be-
cause it would compel them
to share their welfare monies
with KID, which they are not
inclined to do, especially if
KID opposes dam removal.
Although KID has not
taken an oficial position on
dam removal, it is on record
for having strenuously ob-
jected to the nontransparent
and non-inclusive procedures
by which KHSA parties pre-
viously proceeded to execute
the Amended KHSA and new
KPFA.
This distinction, howev-
er, did not prevent the BOR
Mid-Paciic regional ofice
director from conveying the
same concern to KID coun-
sel during April and May’s
C Canal lume replacement
contract negotiations, there-
by interlinking the 35 percent
write-off with dam removal.
Bottom line
In sum, a close reading of
the Wyden-Merkley amend-
ment reveals that, even if KID
does not object to dam remov-
al, KID would remain ineligi-
ble to receive the 35 percent
write-off the amendment pre-
tends to guarantee. S.A. 3288
is, thus, nothing more than a
grand deception favoring gov-
ernment welfare payments for
certain (KID) Klamath Basin
farmers toeing the lame duck
Obama administration’s poli-
cy line.
Consequently, KID’s exe-
cution of the BOR’s one-sid-
ed C Canal lume replacement
contract under duress and
false pretense will not buy it
this administration’s loyalty.
Instead, it will solidify BOR
control over the Project, and
bury the district, which is cur-
rently free from both Project
construction and O&M debt,
in more than $10 million of
new debt.
It also will severely com-
plicate, if not undermine,
KID’s newly initiated bold ef-
fort to ensure greater irrigator
freedom and independence by
irst exploring and then pur-
suing title transfer with the
incoming administration.
Lawrence Kogan serves
as counsel to the Klamath
Irrigation District. He is
managing principal of the
Kogan Law Group P.C. in
New York.
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