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Waterkeepers Washington File Amicus Brief in State Supreme Court Case Over Non-Point Source Water Pollution

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A case that could seriously alter the Washington State Department of Ecology's ability to address non-point source pollution under State law has us standing strong behind our state's regulatory agency.

At issue is Joseph Lemire, 68, a cattle rancher near Dayton, WA and a 2009 order from the Department of Ecology that required him to stop allowing cattle access to Pataha Creek -- a creek that is already listed as an impaired body of water. The worry is that when cattle use streams for drinking, they trample the natural shoreline and leave their fecal waste in the water, polluting not only the stream, but also lakes and rivers downstream.

Lemire appealed the order in 2011 to the Pollution Control Hearings Board objecting to the scope of the order and disputing the fact that the livestock were actually causing pollution. The PCHB ruled that "The outcome of this appeal is not dependent on testing of Pataha Creek, as the agency need only show the substantial potential for pollution to occur," and granted Ecology's motion to dismiss the case." Lemire then appealed that decision to the Columbia County Superior Court, which found in Lemire's favor, overturning the PCHB decision.

In late September 2011, Ecology filed an appeal with the Washington State Court of Appeals to overturn the decision by the Columbia County Superior Court that prohibits Ecology from taking action to keep cattle from polluting streams and rivers. "We think the judge has it wrong. His ruling strikes at our fundamental authority to help prevent pollution in the water in the state," said Kelly Susewind, Ecology's Water Quality Program manager in Olympia. Ecology had this to say about their decision to appeal,

Because of the importance of maintaining our ability to protect water quality statewide, and because clean water is a statewide resource necessary for the health and safety of our citizens, businesses and communities as well as our fish, Ecology will ask the state appellate court to review the facts. The Clean Water Act prohibits polluting the state's water. A healthy agricultural industry and clean water are equally essential to our state's economy and way of life. Both depend on clean water.

And that's where we (Spokane Riverkeeper, Columbia Riverkeeper, North Sound Baykeeper and Puget Soundkeeper -- "Waterkeepers Washington") step in. Helping Ecology maintain its ability to address water quality is about as important as an action as we as Keepers can take in the state of Washington. Especially now, in a time where the threat to weaken environmental regulations and oversight is increasing. We intend to help Ecology maintain its authority to regulate non-point source pollution, a major threat to waterbodies across the state, especially the Spokane. So last week, on May 10th, Waterkeepers Washington filed an Amicus Brief in support of the State of Washington, Department of Ecology stating:

The degradation of the Pataha Creek and other Washington water bodies from unmanaged nonpoint sources of pollution, such as cattle, are serious concerns to Waterkeepers Washington. Without the authority to regulate nonpoint source pollution and its precursors, Ecology lacks essential tools necessary to control water pollution and meet the requirements of both state and federal law. The burden of all water pollution within Washington will rest upon point source operations and community groups to find non-regulatory methods of combating nonpoint source pollution. Ecology is better suited to implement the necessary best management practices to combat nonpoint source pollution and mitigate the regulatory burden on point source pollution.

Waterkeepers Washington joins with Ecology and respectfully requests that the court reverse the superior court's decision and uphold the Board's decision affirming Ecology's Order that is supported by the record.

Because I too am not a lawyer, here's what an Amicus Brief or Amici Curiae is: "Literally, friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of a broad public interest; e.g., civil rights cases. They may be filed by private persons or the government. In appeals to the U.S. courts of appeals, an amicus brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof."

Here are some photos taken by Ecology of Lemire's ranch.

To sum up, here is the closing from our Brief:

Ecology has the authority to regulate and manage nonpoint source water pollution. Ecology's Order represents the proper manifestation of the Ecology's authority pursuant to both the Clean Water Act and the Washington Water Pollution Control Act to control nonpoint source and its precursors. Lemire's cattle ranching practices posed a substantial potential to pollute the Pataha Creek. Ecology's ability to regulate similarly situated land owners that violate the Washington Water Pollution Control Act is of great importance to Waterkeepers Washington and the residents of Washington.

Nonpoint source pollution is the largest threat to water quality in Washington and its pervasive nature requires a state wide regulatory scheme to manage the adverse environmental impacts nonpoint source pollution poses to Washington's water bodies. The court's decision in this matter will determine the strength of the Washington Water Pollution Control Act and where the burden of Washington's water pollution will be placed: nonpoint sources and its precursors or point sources and community groups. Waterkeepers Washington seek the balanced approach envisioned in the Washington Water Pollution Control Act.

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