For EPA, Blowback On “What’s Upstream?” Carries A Familiar Refrain

For EPA, Blowback On
In the wake of "What's Upstream?," Washington state dairy cows are wondering: is the EPA friend or foe? Photo: news.wsu.edu

The blowback toward the U.S. Environmental Protection Agency (EPA) and its Region 10 northwest office is growing, because EPA grant money was used in Washington state for political lobbying that targeted agriculture in a ham-fisted manner. And it’s not only “how” this happened, but also “how often” that is concerning the public. Records show that EPA had already been in hot water with federal authorities in 2015 for misuse of public funds in another water quality lobbying campaign and in 2014 for poor oversight of grant regulations in Region 10.

And though it talks the talk on water quality, the agency hasn’t always walked the walk.

EPA came under fire for causing a major water integrity mishap in Colorado last summer despite an advance warning from a contractor of a potential “blow out” at an abandoned mine the agency was determined to excavate. EPA also earned warnings for failing to closely monitor whether actual water quality improvements were resulting from $32 billion in Combined Sewage Overflow (CSO) consent decree projects.

“What’s Upstream?” Campaign Badly Backfired

The salmon-focused “What’s Upstream” campaign in Washington state included billboards in Bellingham and Olympia bearing the words, “unregulated agriculture is putting our waterways at risk” and showing what proved to be cows from Amish Country standing in a dirty stream.

The aim was to support an EPA-funded lobbying campaign targeting agriculture and state legislators. It badly backfired.

The campaign used a website that included a now-removed form letter action alert. According to U.S. Rep. Dan Newhouse of Washington (R-4), it urged Washingtonians to pressure their state legislators to support “stronger laws protecting the health of our water resources in Washington state” via “100-foot natural buffers between agriculture lands and streams.”

Capital Press reports that the “What’s Upstream?” grant sub-awardee, the Swinomish Tribe, had been closely involved in getting related state legislation introduced in the 2016 session. It would have stipulated some farmlands along waterways carrying salmon include buffers. At the same time, the state was also recalibrating rules for its issuance of water quality-related permits to so-called Concentrated Animal Feeding Operations.

EPA Region 10 Seeks Answers From NIFC On ‘What’s Upstream?’

The “What’s Upstream?” controversy has promoted two senators to request an investigation by the EPA’s Office of the Inspector General (OIG). And the agency’s Region 10 in a statement to Lens says it is already asking for a full accounting from the main grantee, the Northwest Indian Fisheries Council (NIFC) about what went wrong with its sub-grant to the Swinomish.

NIFC is made up of 20 tribes and was formed after a landmark 1974 U.S. Supreme Court ruling establishing treaty-tribe fishing rights in Washington. Several environmental advocacy organizations have partnered with NIFC on “What’s Upstream?” They include the Swinomish Tribe, Puget Soundkeeper, Spokane Riverkeeper, the Western Environmental Law Center, and the Center for Environmental Law and Policy.

“What’s Upstream?” was part of a late 2010 $3 million grant to NIFC from EPA to “develop and carry out a program to subaward and manage funding…for Tribal implementation projects to protect and restore Puget Sound consistent with the Puget Sound Action Agenda.”

The campaign’s tenor and ethics didn’t sit well with Washington State Sen. Judy Warnick (R-13). She is chairwoman of the Senate Agriculture and Rural Economic Development Committee.

Using Tax Dollars ‘To Pursue A Political Agenda’ Is ‘Entirely Inappropriate’

In a recent op-ed Warnick decried as “entirely inappropriate” the “What’s Upstream?” campaign’s use of tax dollars “to pursue a political agenda.”

Warwick added the billboards sent a “false message that agriculture in Washington is unregulated when many…would say the industry’s regulatory burden is in fact high…”

A Familiar Refrain

This isn’t the first time EPA has been under fire for political advocacy with public monies.

That came to light when 145 U.S. House members led by Newhouse recently wrote to EPA Administrator Gina McCarthy to express their “extreme concern” with the “Region 10 funded” web site and campaign.

The Congressional members added that they were dismayed partly because the warning signs have already been made clear to EPA by the U.S. Government Accountability Office (GAO) and the EPA’s own Office of the Inspector General (OIG) after similar EPA mistakes.

The members wrote McCarthy that a 2014 EPA OIG Report noted Region 10 project officers overseeing grant sub-awardees were inattentive to enforcing grant requirements, and that out of 10 sampled EPA-wide projects involving 501(c)(4) sub-award recipients, only three had protocols in place against lobbying activities.

They also cited a report-length December 2015 GAO letter to a Senate committee chairman detailing EPA’s violations of Section 718 of the Financial Services and General Government Appropriations Act for using public funds for “unauthorized publicity or propaganda purposes.”

A Thunderclap Of ‘Covert Propaganda’

The finding stemmed from GAO’s determination that EPA used the social media outreach and advocacy platform Thunderclap for “covert propaganda” to develop supposedly personal messages to federal legislators from constituents on Clean Water Act safeguards, that were actually written by EPA and automated for user ease.

EPA also violated another section of that law, according to the GAO letter. That resulted from another online campaign on regulations tied to Waters Of The United States (WOTUS) or Clean Water Rule rule-making. It included links to citizen lobbying pages at two environmental groups’ web sites where, GAO wrote, users were urged “to contact Congress in opposition to pending legislation in violation of the grassroots lobbying prohibition.”

Using EPA Money To ‘Build Public Support For A Regulatory Remedy’

Turning back to “What’s Upstream?,” the letter from Newhouse and his U.S. House colleagues also accents EPA’s role in outreach and lobbying on “What’s Upstream?” They cite an autumn 2015 report to Region 10 from the Swinomish Tribe which stated under “Highlights/Lessons Learned” that, “as a result of extensive review and engagement by EPA, we have been revising the website and have restarted media outreach.”

The report also notes one deliverable under the grant was 15 meetings with the Seattle public affairs firm Strategies 360 and that the work included “..a strategic advertising plan…to reach a targeted audience both to raise awareness of the issue and build public support for a regulatory remedy.”

EPA Administrator McCarthy acknowledged in recent testimony to the U.S. Senate’s Environment and Public Works Committee regarding “What’s Upstream” that, “EPA also was distressed about the use of the money and the tone of that campaign, and we have put a halt to reimbursements of any funds under that…we have told our contractor that we need to have a full discussion and review before additional monies are expended. And I do know that the most egregious tone was reflected on billboards. That will not be reimbursed…”

Region 10 Policy Advisor Bill Dunbar in a written statement to Lens said, “EPA recently met with the Northwest Indian Fisheries Commission (NIFC) who we’ve asked to conduct a full review of its sub-grant to the Swinomish Tribe. We have requested the Commission not allow any further expenditure of funds under this grant until the review is complete. We expect the Commission’s review to assess all aspects of their sub-grant to the Swinomish Tribe.”

NIFC Division Manager Tony Meyer said NIFC played only a “pass-through” role in the sub-grant, not an oversight role. He declined further comment.

Larry Wasserman, Environmental Policy director for the Swinomish Tribe, defended the “What’s Upstream?” campaign. “We would say the same thing again. The message would not change.” EPA and internal review indicated there was no risk of crossing the line to lobbying, he added. There have been “tremendous improvements” nationally and in Washington on limiting point-source pollution, meaning from industrial pipes and on-site emissions systems, said Wasserman. But he said greater emphasis is needed on making streams and rivers more “fishable, swimmable and drinkable” through better controls on non-point sources like agriculture and forestry. That’s what the campaign is trying to get at, Wasserman added.

EPA’s Role In Washington Fish Consumption Rule Questioned

EPA’s aggressive role on water quality is to some degree a natural outgrowth of its mission to protect the environment. But the agency has not only confused regulatory responsibilities and educational outreach with advocacy. Its heavy-handed engagement with the Washington State Department of Ecology on an emerging fish consumption rule has also raised questions.

As Lens reported recently, “astride the state process, EPA has drafted its own water quality standards that critics say add no public health benefit, but could pose excessive cost burdens.” A city of Everett official wrote that stakeholders including EPA “have essentially forced” the state to set the bar at an unreasonably high level.

More Walk, Less Talk

Yet for all it’s stance-taking to protect water quality, evidence reveals EPA has in some instances been curiously inattentive to safeguards or outcomes.

In August of 2015 the agency’s workers dug too aggressively into an abandoned tunnel at the Gold King Mine in Colorado, ignoring a May 2015 written warning from a contractor of a potential “blow-out” and sending three million gallons of lead, mercury, arsenic and additional metals into Colorado’s Animas River and New Mexico’s San Juan River. This destroyed 1,500 Navajo Nation farms.

U.S. Senators John Barrasso (R-Wyoming) and John McCain (R-Arizona) in a letter this week to U.S. Attorney General Loretta Lynch allege that in an last-minute addition to a report just before committee oversight hearings on the disaster, “EPA attempted to obfuscate facts surrounding this episode” with “a demonstrably false narrative” that its employees had heeded and were following procedural cautions about Gold King Mine from a co-worker. They asked Lynch to consider a criminal prosecution of parties at EPA responsible for the dramatic fouling of the rivers because any OIG probe is likely to be stymied by the agency.

They also wrote that, “the total damage to crops, soil, livestock, wildlife, irrigation, and drinking water supplies that are critical to the Navajo people…remains unknown.”

EPA has also failed to develop an outcomes data program for water quality improvements sought from Combined Sewage Overflow (CSO) projects it has advanced via legal means.

A September, 2015 EPA OIG Report urged the agency to develop better monitoring of actual water quality outcomes from consent decrees with local governments mandating more than $32 billion in fixes to treat unfiltered sewage flows and contaminated stormwater. The problem, according to OIG, was that EPA doesn’t assess or have a national reporting system to track results, and fails to provide adequate public information on whether water quality is actually improving from the projects. However in the report, OIG says EPA through pledges to improve has addressed all issues raised.

An appendix to the report shows the OIG concerns were also raised in earlier, in 2002 and 2008.

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