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Enumclaw farm // Photo: Tony Webster via Wikimedia Commons

Settlement agreement tackles water pollution caused by farming practices

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As part of a legal settlement, state officials have agreed to develop “best management practices” for agricultural operations, while encouraging Washington farmers to take actions to improve water quality in streams and bays.

The agreement, which includes provisions for stream buffers, was approved by the Washington Department of Ecology and the federal Environmental Protection Agency. Signed by a judge, the agreement effectively ends a four-year lawsuit brought by Northwest Environmental Advocates, which accused the agencies of violating the federal Clean Water Act and Endangered Species Act.

The lawsuit alleged that the EPA improperly approved the Department of Ecology’s 2015 plan for reducing nonpoint pollution (PDF 4mb) from ubiquitous sources. Because nonpoint pollution does not flow through regulated discharge pipes, cleanup actions involve reducing contaminants that wash off forests, farms and developed areas. Nonpoint pollution is one of the great challenges for Puget Sound recovery, according to experts.

Under the agreement, Ecology must develop a new plan by the end of next year that describes actions for reducing nonpoint pollution not included in the 2015 plan. The new plan, which was already in the works, will include “best management practices” (BMPs) for agriculture, providing assurance that a farm will generally meet state water-quality standards if specific voluntary actions are taken.

Among the ideas are methods of managing livestock wastes, along with maintaining or increasing vegetative buffers along streams that pass through forests and farms.

“The order in this case includes a combination of commitments by federal and state agencies to ensure that Washington identifies how wide and how tall streamside buffers must be to protect salmon from extinction,” said Nina Bell, executive director for NWEA.

The agreement requires Ecology to complete the first five chapters of a guidance document called “Voluntary Clean Water Guidance for Agriculture,” including a section on buffers, in the 2022 plan. The remaining eight chapters must be finished by the end of 2025.

Ben Rau, supervisor for watershed planning at Ecology, said the BMP guidance is being developed with help from an advisory group that has completed the first chapter on tillage and related crop issues. Go to the guidance website for details.

The section on buffers will be based on scientific studies that show how certain buffer widths and specific vegetation types can reduce sediment going into nearby streams and otherwise maintain healthy water conditions, Rau said. Buffers are just one measure among a “suite” of actions that together will help protect salmon and other aquatic species from harmful activities involving agriculture.

The BMPs will be promoted as a good way for farmers to protect water quality, Rau said. Eventually, the new buffers will become a minimal requirement for farm owners seeking government grants to improve water quality and make their property more salmon-friendly. Current buffer requirements for grants are based on an analysis outlined in a 2012 matrix and a 2013 letter from the National Marine Fisheries Service.

Agricultural BMPs may also come into play as part of an enforcement action by state or local water-quality inspectors. For example, based on stream surveys or citizen complaints, authorities might identify an area of a stream with high levels of bacteria. As part of the cleanup effort, it could be presumed that a farm owner would not need to take further corrective actions if the farm complied with approved BMPs, according to Rau.

The legal agreement also calls for agricultural BMPs to be incorporated into formal watershed-cleanup plans where a watershed includes farming areas. Such plans identify sources of pollution as well as specific measures designed to bring a waterbody into compliance with state water-quality standards. Such plans are often called TMDLs because they establish pollution limits known as “total maximum daily loads.”

The pace of cleanup for Washington’s waterways using TMDLs has been an issue of contention for more than 30 years. A legal action related to watershed cleanups was launched by NWEA in 1991 and renewed in 2019. The lawsuit (PDF 312 kb), which involves Ecology and the EPA, demands that polluted waters in Washington be formally identified and that Ecology increase its efforts to clean up polluted waters through TMDL planning. Beyond planning, there is a recognized need to find ways to get parties identified in the plan to carry out the actions needed to improve water quality.

The recent settlement related to agricultural BMPs raised concerns from the Washington Cattlemen’s Association and the Washington State Farm Bureau Federation, which were allowed to join the case. See their joint comment letter.

The settlement, they argue, could result in requirements for farmers to install nonpoint controls that are “more costly and possibly technically or economically infeasible.” Another problem, they say, has been the failure of the state and federal governments to include the groups in a conversation over BMPs that could affect their very existence.

“At this time, the associations do not intend to formally object to the settlement, if adopted,” their letter states. “However, the associations remain very concerned about implementation of the agreement and whether the water-quality standards to be further developed pursuant to the agreement will be based on sound science and include meaningful consideration to agriculture and the benefits of agriculture to society.”

In one section of its 2015 plan, the Department of Ecology acknowledges its unique statutory limitations when enforcing water-quality laws with respect to certain farming practices that fall under the authority of the Washington Department of Agriculture.

Those limitations plus a perceived reluctance to force farmers to improve water quality in agricultural regions has led to ongoing frustrations by some Native American tribes and environmental groups in Washington state. Check out “Agricultural Pollution in Puget Sound: Inspiration to Change Washington’s Reliance on Voluntary Incentive Programs to Save Salmon” (PDF 3.3 mb) by the Western Environmental Law Center.

While agriculture is a major focus of the recent legal settlement, the updated state plan must address all forms of nonpoint pollution, including that from forests, septic systems and developed areas.

Commercial forestlands, for example, are deemed to meet water-quality standards for the most part, provided that landowners comply with regulations under the state’s Forest Practices Act, Rau said. For years, forestland owners have cooperated in ongoing studies and negotiated with state and federal agencies, tribes and environmental groups to develop rules to protect salmon and water quality.

Through the years, a process of “adaptive management” has identified a need for rule changes, he noted. For example, areas where forest buffers may need to be increased in size are along smaller streams not likely to be used by salmon. With current buffers of minimal width, researchers have found an increase in water temperature due to a lack of shade. Those higher temperatures can affect salmon in downstream waters suitable for spawning.

For a discussion of nonpoint issues in our forests, review Ecology’s page on Forestry runoff, including the 2009 Clean Water Act Assurances Review by Ecology as well as the two-year extension granted in 2019 (PDF 583 KB).

After the next nonpoint plan is completed, the settlement agreement requires the EPA to submit the document to other federal agencies for review to make sure the result is protective of threatened and endangered species. For salmon and marine species, the National Marine Fisheries Service is in charge, while freshwater species are under the authority of the U.S. Fish and Wildlife Service.

Ecology planners have been working steadily to complete the next nonpoint plan under self-imposed deadlines, but Rau acknowledges that the settlement agreement provides legally based time limits. Barring unforeseen circumstances, the next plan must be done by the end of 2022, followed by another update in 2025.
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Editor’s note: This article was produced with funds provided by a grant from the Environmental Protection Agency.

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