Livestock wading in the river

I'm puzzled that so many South Branch farmers reject programs that protect wetlands and riparian zones.  This gives me hope.  - Jim E.

Reposted from the Center for Justice Blog:

State of the Creek

August 15, 2013 in Breaking News

In a ruling with broad ramifications for how effectively Washington can regulate water pollution, the state Supreme Court rules to protect a contaminated waterway from “wallowing” livestock.

Lemire v. Ecology, a case decided earlier today by the Washington Supreme Court, is among the most important state environmental cases in recent years.

At issue, simply, is whether Washington regulators can effectively take action to stop what is known as “nonpoint” water pollution. “Point source” pollution is that which comes out a discharge pipe in to a waterway. “Nonpoint” is basically everything else, including polluted run-off from agricultural operations, or massive shopping mall parking lots. Because of the diversity of sources and investments needed to curtail polluted run-off, getting a handle on nonpoint pollution is often the largest headache in achieving compliance with state and federal water quality standards.

A Lemire cow at Pataha Creek. (Photo Courtesy Washington Department of Ecology.)

In the Lemire case, it was cows. Cattle rancher Joseph Lemire has been allowing his cattle unguarded access to Pataha Creek, a tributary to the Tucannon River not far from where the Tucannon joins the Snake River in the southeast corner of the state. Lemire’s ranch was identified a decade ago by Ecology as having a detrimental effect on Pataha Creek, which flows through the ranch. After trying to work collaboratively with Lemire for six years, the agency finally issued an order to compel the rancher to better protect the creek from the cattle that were trampling the stream banks, “wallowing” in the water, and, as you might expect, defecating into and near the polluted creek.

Lemire lost a challenge to the state’s Pollution Control Hearings Board but then challenged the board’s ruling in Columbia County Superior Court. The superior court judge overruled Ecology and the hearings board, finding that the enforcement action was unwarranted and that it also represented an unconstitutional “takings” of Lemire’s economic rights to use his land.

But in an 8-1 opinion authored by Justice Debra L. Stephens, the state Supreme Court today reversed the lower court’s decision, upholding Ecology’s regulatory authority under state law. In the decision, Justice Stephens wrote that the “plain language” of Washington’s Pollution Control Act “give Ecology the authority to regulate nonpoint source pollution discharge.”

As for Lemire’s contention that his actions do not require a permit under the federal Clean Water Act, Justice Stephens wrote, that “is irrelevant to the question of Ecology’s authority to regulate his activity under state law.

Here, the court cited an amicus brief filed by Waterkeepers Washington (including the Spokane Riverkeeper.)

“As amici Waterkeepers Washington explain,” she wrote, “Lemire’s actions may not be subject to a permit requirement under the Clean Water Act, but his actions are well within the state’s jurisdiction to prevent and control pollution within its borders.”

Today’s decisions got an enthusiastic response from Rick Eichstaedt, the Center’s executive director, who was the lead author on the Waterkeepers Washington amicus brief in the case.”

“This will have giant implications to address pollution across the state of Washington,” Eichstaedt said.
“We think this decision makes sense,” added Spokane Riverkeeper Bart Mihailovich. “We can’t simply place onerous requirements on cities and industries. Everyone needs to share the responsibility for cleaning up our water bodies. Lemire thought he was immune from the law and the Supreme Court rightfully found he was wrong.”

Lemire can appeal the decision to the U.S. Supreme Court, Eichstaedt noted. But, Eichstaedt points out, the U.S. Supreme Court would have the discretion of whether to hear the appeal and it usually reserves review to cases involving interpretation of federal law or the Constitution, not matters solely of state law as were involved in this case.

–Tim Connor for the Center for Justice