Friday, September 3, 2021
CapitalPress.com 5
Court strikes down Navigable Waters Protection Rule
By CAROL RYAN DUMAS
Capital Press
A federal judge in Arizona
on Monday vacated the Navi-
gable Waters Protection Rule
put in a place by the Trump
administration in 2020.
The rule reined in the
Obama
administration’s
2015 Waters of the U.S. rule,
which greatly expanded fed-
eral jurisdiction under the
Clean Water Act.
The Environmental Pro-
tection Agency and Army
Corps of Engineers withdrew
the 2015 WOTUS rule in
2019 and reinstated the pre-
2015 regulations. In 2020,
the agencies redefi ned the
term “navigable waters” with
the Navigable Waters Pro-
tection Rule, categorically
excluding certain features
from the defi nition includ-
ing “ephemeral streams,”
or those that have fl owing
water only after a storm.
Plaintiff s
representing
Native American Tribes
challenged the Navigable
Waters Protection Rule and
requested that it be vacated.
Plaintiff s including the
Pascua Yaqui Tribe, Quinault
Indian Nation, Fond du
Lac Band of Lake Supe-
rior Chippewa, Menominee
Indian Tribe of Wisconsin,
Tohono O’odham Nation,
and Bad River Band of Lake
Superior Chippewa moved
for summary judgment on
May 11.
In lieu of fi ling a response
Washington to cull Togo
wolf pack in Ferry County
By DON JENKINS
Capital Press
The
Washington
Department of Fish and
Wildlife said Aug. 26 it
will try to kill one or two
wolves in the Togo wolf
pack, which has been
attacking cattle on public
and private land in Ferry
County.
Fish
and Wildlife
Director Kelly Susewind
authorized lethal removal
because non-lethal deter-
rents used by three dif-
ferent ranchers have not
stopped the pack from
attacking cattle, according
to the department.
Even if more non-le-
thal measures are added,
the attacks are likely to
continue, according to the
department.
The Togo pack has a his-
tory of attacking livestock.
Susewind has authorized
lethal removal fi ve times
in the past four years. The
department has removed
one wolf.
The pack has fi ve adults
and four pups and again
crossed the threshold this
month for the department to
consider lethal removal.
The department has doc-
umented four attacks on
calves since June 24, includ-
ing three within the past 30
days. One calf was eutha-
nized because of its injuries.
Ranchers have revised
their operations to prevent
the attacks, a prerequisite
to the department resort-
ing to lethal control.
Non-lethal measures
include having more peo-
ple around the grazing
cattle and delaying the
release of cattle onto sum-
to the plaintiff s’ motion for
summary judgment, EPA
and the Corps sought to vol-
untarily remand the Naviga-
ble Waters Protection Rule
while they worked to revise
or replace it and redefi ne
waters of the U.S.
U.S. District Judge Rose-
mary Marquez granted the
agencies’ motion for volun-
tary remand but also granted
plaintiff s’ motion to vacate
the rule.
“Remanding
without
vacatur would risk seri-
ous environmental harm,”
she said, noting the agen-
cies have identifi ed indica-
tors of a substantial reduc-
tion in waters covered under
the rule compared to previ-
ous rules and practices.
American Farm Bureau
Federation said it is
“extremely” disappointed in
the ruling.
“Farmers fi nally had
environmentally responsi-
ble regulations that brought
clarity to clean water
eff orts,” said Zippy Duvall,
Farm Bureau president.
“This ruling casts uncer-
tainty over farmers and
ranchers across the country
and threatens the progress
they’ve made to responsi-
bly manage water and natu-
ral resources,” he said.
Three courts previously
refused to dismantle the
Navigable Waters Protec-
tion Rule, including last
month when a federal court
in South Carolina refused a
similar request from a group
of plaintiff s, he said.
“Unfortunately, this Ari-
zona court simply accepted
the plaintiff s’ assertions as
true and did something that
no other court has done in
vacating the NWPR,” he
said.
Farm Bureau is review-
ing the ruling to determine
its next course of action, he
said.
“Farmers and ranchers
deserve consistency and a
rule that is fair and doesn’t
require a team of attorneys
to interpret,” he said.
The National Cattlemen’s
Beef Association said the
Navigable Waters Protection
Rule corrected the disastrous
2015 Waters of the U.S. rule
and provided key protections
to farmers and ranchers.
The rule limited federal
overreach and provided reg-
ulatory certainty to cattle
producers, said Scott Yager,
NCBA chief environmental
counsel.
“The NWPR was a solu-
tion to the far overreaching
2015 WOTUS rule, but yes-
terday’s court decision adds
further confusion to an issue
that has been complicated by
decades of activist-driven lit-
igation,” he said.
“NCBA is disappointed
in this decision and will con-
tinue advocating for regula-
tions that protect the ability
of cattle producers to invest
in their land and care for
their cattle,” he said.
Wyden defends River Democracy
Act in hour-long virtual town hall
By GEORGE PLAVEN
Capital Press
WDFW
A wolf in the Togo pack
in Ferry County in north-
east Washington.
mer grazing lands.
Livestock
graze
throughout much of the
pack’s territory, and the
wolves have learned to
attack them, factors in
the department conclud-
ing the depredations will
continue.
The department said
it does not expect that
removing one or more
wolves in the Togo pack
will harm overall wolf
recovery in Washington,
another prerequisite of
lethal removal.
The department has
documented three wolf
deaths this year. In past
years, 12 to 21 wolves
have died, and the pop-
ulation
continues
to
rise, according to the
department.
The department has
a self-imposed deadline
of Sept. 26 for remov-
ing wolves. The dead-
line could be extended if
there are more attacks on
livestock.
HERMISTON, Ore. — Legislation
that would add nearly 4,700 miles of wild
and scenic rivers across Oregon would
have no impact on private land or exist-
ing property rights, according to the bill’s
chief architect, Sen. Ron Wyden.
Wyden, an Oregon
Democrat, introduced
the River Democracy
Act in February based
on more than 15,000
public
nominations
from all corners of the
state.
On Aug. 31, Wyden
Sen. Ron
defended the bill during
Wyden
an hour-long virtual
town hall. The legislation has faced oppo-
sition from rural counties over whether it
would add new restrictions on grazing,
timber harvest and recreational access.
Speaking from Hermiston in northeast
Oregon, Wyden pledged the bill would
not go forward without “loophole-free,
airtight” protections for private property.
Rather, he said it applies only to fed-
eral lands and was written specifi cally
not to interfere with existing property,
grazing and water rights.
“Protecting existing rights was part
of our eff ort to strike a balance,” Wyden
said.
If passed, the River Democracy Act
would roughly triple the number of
wild and scenic rivers in Oregon. The
National Wild and Scenic Rivers System
was established in 1968 to preserve riv-
ers with outstanding natural, cultural and
recreational values.
The bill also widens protective buff ers
from a quarter-mile to half-mile on both
sides of designated streams, adding up to
3 million acres of protected land.
Earlier this year, the American Forest
Resource Council, a regional timber trade
association, conducted its own analysis
of waterways nominated for inclusion in
the bill. The group found that just 15%
were actually labeled as “rivers,” with
Nick Smith/AFRC
Bear Gulch in Southern Oregon was nominated as a Wild and Scenic River
under the River Democracy Act introduced by Sens. Ron Wyden and Jeff
Merkley. Eastern Oregon counties oppose the bill.
most being identifi ed as streams, gulches,
draws or unnamed tributaries.
The AFRC and other opponents have
argued this is a misuse of the Wild and
Scenic Rivers System — though Wyden
countered that intermittent streams are
not only valid for protection under the
law, but necessary for watersheds.
“I’ve come to think that there’s almost
a transportation analogy here that’s
appropriate,” Wyden said. “You don’t
manage traffi c just by building highways.
You need connecting streets, alleyways
and sidewalks. The same, in fact, applies
to most river systems.”
Approximately 2 million Oregonians,
or nearly half the state’s total population,
depend on intermittent streams for clean
drinking water, Wyden added.
The bill also requires the U.S. For-
est Service and Bureau of Land Man-
agement to assess wildfi re risks in each
wild and scenic river corridor. The agen-
cies would then have up to six years to
develop mitigation plans, working with
local, state and tribal governments.
The bill would create a $30 million
per year fund to restore and rehabilitate
riparian areas that do burn in a wildfi re,
Wyden said.
Supporters of the bill did speak during
the virtual town hall, including represen-
tatives of the Nez Perce Tribe and Con-
federated Tribes of the Umatilla Indian
Reservation.
Kat Brigham, CTUIR chair, said she
is pleased with the River Democracy Act,
and that it reinforces stream restoration
already undertaken by the tribes.
“It moves us closer to what we are
working toward — building, protecting
and enhancing cold, clean water, not only
for our fi rst foods, but for ourselves,”
Brigham said.
Others, however, say their questions
remain unanswered.
In a memo released shortly after the
meeting, the AFRC pushed back against
the bill, arguing wild and scenic designa-
tions would impose restrictions on forest
management and actually increase wild-
fi re risk in the protected stream corridors.
The bill would also “dramatically
increase management costs and com-
plexity on-the-ground, create confl icts
between user groups, and distract and
overload federal agencies already over-
whelmed by catastrophic wildfi re man-
agement and response,” the memo
states.
Oregon Court of Appeals upholds denial of landfi ll expansion
However, LUBA found
the local government’s rea-
soning to be “more than
adequate.”
Waste
Management
announced it would stop
accepting public garbage
and recycling this summer,
even before the appellate
court’s decision. However,
the facility will still bring
in contaminated soil and
solid waste to prepare its
slopes for fi nal cover.
The landfi ll opened
about four decades ago but
the owners approached the
county about expanding it
in 2009.
The local government’s
approval of the proposal
was subject to prolonged
litigation, with the state’s
Supreme Court issuing a
landmark decision in 2019
overturning the county’s
permit.
The
ruling
estab-
lished the legal prece-
dent that adverse agri-
cultural impacts must
be reviewed “practice
by practice and farm by
farm” and cannot sim-
ply be compensated with
cash.
S258354-1
The Oregon Court of
Appeals has upheld Yam-
hill County’s decision to
deny a controversial land-
fi ll expansion that neigh-
boring farmers claimed
would
disrupt
local
agriculture.
The county refused to
allow the Riverbend Land-
fi ll to increase its footprint
by 29 acres last year, citing
concerns about litter, pests
and water quality impacts
on surrounding growers.
A legal challenge by
Waste Management, the
landfi ll’s owner, has now
been rejected by the appel-
late court, which agreed
with the state’s Land Use
Board of Appeals that the
county followed the law in
denying the application.
The issue before the
Court of Appeals was nar-
row: Whether the county
should have explained in
detail why it rejected a
fl oodplain
development
permit along with its denial
of the overall site design.
When
the
county
rejected the overall proj-
ect, “further consideration”
of the fl oodplain develop-
ment permit “was rendered
unnecessary,” the Court of
Appeals said.
The earlier decision by
LUBA more broadly deter-
mined that Yamhill County
had suffi ciently explained
why the landfi ll’s farm
impacts could not be “mit-
igated to an insignifi cant
level” by the operator.
For example, Waste
Management argued the
county should have bet-
ter explained why small
amounts of plastic litter
would force impermissi-
ble changes to nearby hay
production.
S253066-1
By MATEUSZ PERKOWSKI
Capital Press