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7 Western Environmental Law Center
Spokane RNERKEEPEW
September 6, 2017
Ms. Melinda Brown Washington State Office of the Attorney General PO Box 40100 Olympia WA 98504-0100 Email: MelindaBIgATG.WA.GOV
Re:
Comments for WA State Sunshine Committee quarterly meeting, August 15, 2017
Dear Ms. Brown: We urge the Sunshine Committee to recommend to the Legislature that RCW 90.64.190 and RCW 42.5 6.610 be repealed. These statutes were up for consideration at the quarterly Sunshine Committee meeting held on August 15th, 2017, and contain exemptions to Washington's Public Records Act. The undersigned requested an extension of time to submit comments on this matter on August 15th, 2017 after receiving notification of the meeting, but having not received a formal response to several phone calls and emails to date. We hope this letter is timely and will be considered by the Committee in its decision-making process. The two statutes up for consideration at the August 15th meeting, RCW 90.64.190 and RCW 42.56.610, should be repealed. They exempt certain agricultural operations—dairies, animal feeding operations, (AFOs), and concentrated animal feeding operations (CAFOs)—from reporting information necessary to implement, monitor, and enforce various state and federal regulatory and incentive programs created to prevent agricultural pollution and protect water quality. These exemptions prevent the Washington Department of Ecology (Ecology) and the public from evaluating the sufficiency of these plans and from gauging whether farms are actually implementing the plans. This thwarts the ability to evaluate whether and what best management practices (BMPs) are being implemented by dairies, AFOS and CAFOs, and whether, what, and how well BMPs are actually working. States report that nonpoint source pollution is the leading remaining cause of water quality problems in the United States.' Agricultural pollution is the biggest contributor of nonhttps://www.epa.gov/nps/what-nonpoint-source
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point source pollution to our rivers and streams in the United States.2 Despite the gravity of this problem, agricultural non-point source pollution is not being effectively monitored or controlled in Washington State. Agricultural pollution cannot be monitored and controlled or prevented without the transparency of farm operations, including public disclosure of the information currently exempted under RCW 90.64.190 and RCW 42.56.610. The information exempted from disclosure is necessary for the proper implementation of several state water quality and pollution control programs, outlined below: 1. Washington's Dairy Nutrient Management Program is a water quality program administered by Washington State Department of Agriculture (WSDA) under Chapter RCW 90.64, the Dairy Nutrient Management Act. Elements of the program are managed in conformance with a Memorandum of Understanding with the Washington State Department of Ecology. Washington's Dairy Nutrient Management Act requires all licensed cow dairies to develop and implement nutrient management plans (DNMPs), register with WSDA, and participate in a program of regular inspections and compliance. 2. In Washington, Conservation Districts assist farmers in preparing Farm Plans for the purpose of conserving resources and engaging in environmentally sound farming practices. Information in Farm Plans includes, but is not limited to: "(a) Developing and prioritizing conservation objectives; (b) Taking an inventory of soil, water, vegetation, livestock, and wildlife; (c) Implementing conservation measures, including technical assistance provided by the district; (d) Developing and implementing livestock nutrient management measures; (e) Developing and implementing plans pursuant to business and financial objectives; and (f) Recording, or records of, decisions." RCW 89.08.560(2). 3. Under Washington's Growth Management Act, counties must develop plans for managing population growth and development, including identification and protection of critical areas on agricultural lands. The Voluntary Stewardship Plan (VSP) is an alternative to implementing critical areas ordinances for the protection of critical areas on agricultural lands. RCW 36.70A.705. Under the VSP, farmers may opt in to receive federal and state grants and funding to implement voluntary practices to steward the land and presumably, prevent water pollution.
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https://www.epa.gov/nps/nonpoint-source-agriculture
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RCW 90.64.190 and RCW 42.56.610 currently impede, or have the potential to impede, the efficacy of the above three programs in achieving Washington's water quality goals. One of two major problems is that there is no requirement that farms report on what best management practices are being applied on their properties. How can anyone determine whether they farms are likely to achieve water quality goals without this information? The second major problem is that the five categories of information identified in the statutes — namely, the number of animals, volume of livestock nutrients generated, number of acres covered by the plan, nutrients transferred to other persons, and crop yields — must only be identified in ranges. More detailed information is necessary to determine the quantity of nutrients animals are producing, the quantity being applied to land as fertilizer, and whether those nutrients can be and are being absorbed by the quantity and type of crops on the property. Without access to the data currently exempted by RCW 90.64.190 and RCW 42.56.610, citizens who suspect that a farm is violating its dairy nutrient management plan or farm plan, or are otherwise polluting, are left without a means of investigation or redress. Moreover, neither WSDA nor Ecology can meaningfully verify whether the plans as written are effective at preventing pollution without information regarding the BMPs being implemented. Physical inspections will not verify whether the plans are actually even being implemented on the ground. These exemptions that shield the results from review negate the purpose of requiring plans in the first place. Consequently, many farms are able to operate without any meaningful oversight and may be applying excess fertilizer to their crops, contributing to surface and ground water contamination while simultaneously reaping the economic benefit of avoiding compliance with their plans. This also has the effect of shifting responsibility for pollution clean-up to all other sources. Without disclosure of the information currently exempt under RCW 90.64.190 and RCW 42.56.610, neither the Department of Ecology nor Department of Agriculture has the ability to monitor results to verify whether hundreds of millions of incentive funds are being properly administered to achieve the goals for which they are being distributed. This lack of transparency, fostered by RCW 90.64.190 and RCW 42.56.610, is one of the central problems in addressing agricultural nonpoint source pollution. Farm operations have been given unequal footing among the other polluting industries in Washington that are subject to disclosure requirements. Members of the agricultural community argue that the justification for these limits on reporting have to do with the fact that this is proprietary information, but there is no evidence to support that assertion. Revealing the nature of buffer widths and other information about BMPs—and nutrients—is not proprietary and will not place any farmers under a disadvantage. Keeping this information concealed is contrary to the intent of the millions of dollars that the state and federal government provide each year to fund these practices. The Public Records Disclosure Act provides protection for truly proprietary information. That should be as sufficient for farmers as it is for other businesses; they do not require special exceptions from the law. The balance of interests weigh strongly in favor of repealing these exemptions. These interests include:
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1. The risk of harm that agricultural pollution poses to water quality and to public health, including the contamination of drinking water supplies and the poisoning of fish, rendering them toxic for consumption; 2. The risk of harm that agricultural pollution poses to fish and wildlife, as well as the environment—including poisoning waterways critical to the survival of certain fish species, including some of our iconic and endangered salmon; 3. The risks posed to businesses and industries harmed by agricultural pollution, including but not limited to fishing, water sports and recreation, and shellfish aquaculture; 4. The interest of the public, and government agencies, in regulating agricultural pollution to protect the public health and our environment; 5. The public's very real interest in holding industries accountable for their pollution instead of permitting them to pass these costs to the public and other pollution sources; 6. The public's and other industries' interest in levelling the playing field rather than giving one favored industry free rein to pollute more than any other; and 7. The interest of the public and government agencies to ensure that public tax dollars are utilized effectively to achieve the State's regulatory goals, rather than to continue funding programs that cannot work without oversight. In light of the above, we strongly urge the Sunshine Committee to counsel the repeal of these exemptions. We would also urge the Committee to review and consider the necessity of repeal of the farm plan exemption found in RCW 42.56.270(17). We thank you for reviewing our comments and look forward to hearing your recommendation to the legislature regarding the public records exemptions found in RCW 90.64.190 and RCW 42.56.610.
Sincerely,
Alyssa Barton Puget Soundkeeper Alliance Jerry White Spokane Riverkeeper Nina Bell Northwest Environmental Advocates Shannon Latin Western Environmental Law Center
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Cc: Ms. Nancy Krier Assistant Attorney General for Open Government Office of the Attorney General PO Box 40100 Olympia, WA 98504-0100 NancyK l kATG. WA. GOV
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5 E 6 O A S 4820 NE 306th Circle • La Center, WA 98629 H ERg ~A R M - ----- -
360.263.7757 (office) • 360.263.7749 (fax) 503.780,9230 (Kathy - cell); 503.819.8934 (Roger-cell)
[email protected];
[email protected] Memorandum To: Washington State Public Records Exemptions Accountability Committee ("Sunshine Committee") From: Roger and Kathy Sego, Sego's Herb Farm
Date: October 9, 2017 You have asked for our input on the exemptions from disclosure relevant to certain agriculture and livestock records: RCW 42.56.380(10) — (12); RCW 15.19.080; RCW 16.65.030(1)(d); RCW 49.70.119(6)(a); RCW 90.64.190; RCW 42.56.610, RCW 42.56.380(6) so that you can provide recommendations to the State Legislature. Sego's Herb Farm, LLC is a certified organic medicinal herb farm in La Center, WA. We are regulated by the WSDA and the FDA and are subject to annual audits. We additionally receive valuable ongoing advice and support from various departments within the WA Department of Agriculture and the WA State Extension Service (WSU Vancouver). We value our partnership with the State and the various departments which support sustainable agriculture. We are proud of our record of compliance and would support the full disclosure of information related to our facility. We are aware of farms and manufacturing facilities in Oregon who do not follow good practices and are hiding behind the confidentiality cloaks within Oregon Tilth and the state of Oregon. This is not in the best interest of consumers, their customers, and vendors. Sego's Herb Farm supports full transparency in our operations, business ethics and compliance reports. If you need further information, please feel free to contact me directly at (503) 780-9230 or kathySa_"segoherbfarm.com. Regards,
Kathleen A. Sego, Co-owner Sego's Herb Farm, LLC