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Cambridge, Mass. – In her first speech as the Environmental Protection Agency’s (EPA) administrator, Gina McCarthy noted she is thankful for where her journey has led her, and she noted, “It is really all about our children – our future generations. They are really helping to chart a course for a brighter future.”

In the July 31 address at Harvard Law School in Cambridge, Mass., McCarthy explained her plans for the future of EPA, emphasizing that partnership between the federal government, states, communities and tribes will be critical. She also marked important issues, like climate change, carbon reduction and pollution reduction, as top priorities.

“There are great people at EPA who work hard every day and are so good at what they do,” she added. “It is important to protect public health and the environment.”

Historical success

McCarthy mentioned that EPA has accomplished a number of positive goals since its inception 43 years ago.

“EPA was created 43 years ago by an Executive Order of President Richard Nixon,” McCarthy said. “Who knew an executive order could be so lasting?”

She continued that the country’s success during those years has been long lasting. Decisions and actions by EPA were fraught with controversy, but McCarthy said that the organization will continue to be diligent in moving forward.

McCarthy continued, “What we thought we would do, we have accomplished, and it is a remarkable credit to the President’s leadership.”

Looking at the numbers

As some of the EPA’s accomplishments, she cited statistics showing that emission of air pollutants between 1970 and 2011 decreased by 68 percent while U.S. domestic product increased 212 percent.

“What we wanted to grow, grew, and what we wanted to go down, went down,” McCarthy noted. “From 1970 to 1990, programs under the Clean Air Act helped prevent more than 205,000 premature deaths, 843,000 asthma attacks and 18 million child respiratory illnesses.”

She added that private sector jobs increased by 88 percent during the same period.

“According to our analysis, the Clean Air Act sees $30 in benefit for every one dollar spent,” McCarthy continued. “That isn’t where the story ends.”

Private fund leveraging has also improved environmental quality, she noted.

“We are all about getting environmental improvement wherever it makes sense to improve, and frankly, that is everywhere,” McCarthy said.

Moving forward

“This is an exciting time for all of us,” she added. “Having said that, I also want to acknowledge that we have challenges ahead. They range from substance to failures to communicate, and we need to fix those.”

Today’s environmental challenges are more complicated than ever before, McCarthy noted, requiring continued focus.

“We have to convince the American public that we are taking advantage of the best thinking, newest technologies and the most cost effective, sustainable technologies to meet their needs, as well as the mission of EPA, moving forward,” she said.

To accomplish that end, McCarthy said that understanding climate change and environmental protections, coupled with sound national and global environmental and economic agendas will be important.

“The fragility of the world’s ecosystems are real. The threats posed by changing climate are real, and to turn those challenges around, we need a strong, sustainable economy that embraces these issues and behaves in accordance with what we know about science, the environment, technology and public health,” she commented.

Challenges

A fundamental challenge, said McCarthy, will be the economic climate. 

“Climate change isn’t just an environmental issue – it is a fundamental economic challenge,” she commented. “It is a fundamental challenge internationally, and we need to embrace that challenge.”

Aside from climate change, issues such as fuel economy standards and water are on the forefront of McCarthy’s mind. She also listed access to clean drinking water, preserving limited resources, maintaining storm water structure and improving water treatment facilities.

“Those are some of the most significant challenges we are going to face in a capital constrained world,” McCarthy added.

“We also have to engage in solutions through partnerships and collaboration,” McCarthy explained. “The federal government shouldn’t be leading – it should follow. We should follow our local communities, neighborhoods, cities, towns, urban areas and states.”

In forming valuable partnerships, she remarked that solutions will allow the maximum economic and environmental benefits.

At the same time, while addressing challenges, McCarthy noted that she must follow the leadership of President Obama.

“We will focus on innovation, a path forward to collaboration and we will move forward together,” she said. “We have no choice.”

Into the future

McCarthy commented that there are a number of strategies that EPA will take on in the future to continue to meet its goals.

“We need to bring new ideas to the table, new ways of planning, new ways of bringing capital to the table and new ways of working at green infrastructure,” she noted. “We also have to make sure we don’t go backwards but continue to move forward.”

“We will stop relying on Congress to act on issues that are too important to wait,” McCarthy commented. “We will be smart, and we will rely on the support of the U.S. as we integrate our environmental challenges into a sustainable economy.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Cheyenne – “Agriculture is not only the backbone of communities in rural America, but provides jobs and opportunities across the entire U.S.,” said Ashley McDonald, deputy environmental counsel for the National Cattleman’s Beef Association (NCBA) in one of her columns. “However, one of the biggest obstacles facing the ranching industry is the regulations coming out of Washington.”

At the 2013 Wyoming Cattle Industry Convention and Trade Show in Cheyenne, held June 5-8, McDonald discussed the impacts that various EPA actions could have on agricultural operations. 

SPCC rule

The Spill Prevention, Control and Countermeasure (SPCC) rule requires operations to develop a SPCC plan if the farm has an above ground oil storage capacity greater than 1,320 gallons or buried fuel storage capacity of 42,000 gallons. The implementation date for this rule was May 10, but due to an appropriations rider, EPA cannot enforce the SPCC rule on farms until Oct. 1, 2013. 

“One big issue for the livestock industry is that the definition of oil includes feed ingredients, such as tallow and grease, that are used as feed additives,” said McDonald. “These count towards the aggregate fuel storage.”

Operators may self-certify their plan if the operation has above ground storage of 10,000 gallons or less and does not have a history of significant spills. A professional engineer is required for those that have storage capacity greater than 10,000 gallons or who have a history of significant spills, according to McDonald.

“What we have seen is that is just too low of a number,” McDonald stated, referencing the gallon exemption and self-certification limit. “We are working hard to ease the burden on producers by increasing this number.”

“These plans and the measures that have to be in place to meet the plan can cost $20,000 to $30,000,” McDonald continued. “It will be a very costly regulation if it is allowed to be imposed on the agricultural community.”

FUELS Act

Congress has been engaged on this issue and legislation has been introduced that would ease the burden of this regulation on producers. The legislation, called the FUELS (Farmers Undertake Environmental Land Stewardship) Act was introduced in both the House and Senate. If approved, this legislation would exempt operations that have 10,000 gallons or less above ground aggregate fuel storage capacity, with no history of spills, from certification.  

An amended version of the FUELS Act was recently passed as an amendment to the Water Resources Development Act in the Senate. The Senate-passed version would raise the exemption level, compared to the SPCC rule, to 6,000 gallons above ground storage capacity, subject to a study done by the U.S. Department of Agriculture and the EPA on the risk of discharge from agricultural operations. Based on this study, the exemption level could be reduced from no less than 2,500 gallons. The Senate-passed amendment would also raise the self-certification level to 20,000 gallons above-ground storage capacity. 

Another important provision in the Senate-passed amendment exempts any tank that holds livestock feed ingredients approved by the Food and Drug Administration from counting towards the aggregate fuel storage capacity. 

“While we hope to ultimately have a higher exemption level, the Senate-passed version of the FUELS Act is a vast improvement compared to the SPCC regulation that is scheduled to be enforced on Oct. 1 of this year,” McDonald stated.

EPA data releases 

Also of concern to NCBA, in February 2013, the EPA released information on 80,000 producers across the U.S. to organizations such as Earth Justice and the National Resource Defense Council. 

“Just because you are not a feeder does not mean your information was not included,” McDonald stated.

One example of non-feeders on the list included an operation that only had 12 horses on the property.

According to McDonald, information released included names, addresses, operation names, GPS coordinates, numbers and type of livestock, telephone numbers and email addresses among other information.

“The organizations received the information through a Freedom of Information Act (FOIA) request. EPA gathered the data from state agencies,” explained McDonald. “The livestock community was told after the request was closed and the information was sent out.”

In order to protect livestock producers, legislation has been offered in the Senate to prevent such releases from happening again. 

The legislation, the Grassley/Donnelly Amendment to the Senate Farm Bill, would have prohibited EPA from releasing personal information unless the agency aggregates information at county level or higher or the producer provides consent.

“Unfortunately, despite strong bipartisan support the amendment did not receive a vote before the Farm Bill was passed by the Senate,” she said. 

McDonald said that it will likely be submitted as stand alone legislation during this session.  

WOTUS guidance

In May 2011, the EPA and Corps of Engineers proposed a guidance document attempting to expand the definition of Waters of the United States (WOTUS). This change, devaluating the word “navigable,” would include more waters than are currently jurisdictional. 

Many problems are foreseen for livestock producers with this proposed change. The expansion will mean more permits, longer waiting periods and many other headaches for producers. 

NCBA believes the guidance document violates the Administrative Procedures Act (APA) because it did not go through the procedures outlined by the APA. The APA requires a public comment period, consideration of those comments and a response to those comments by the agency, among other things. These conditions have not been met by the EPA and the Corps.

“By issuing guidance instead of engaging in a notice and comment rulemaking, the agencies have attempted to short circuit the rulemaking process,” stated McDonald. 

The guidance has been sitting at the Office of Management and Budget since February 2012 and could be released in final form at any time. 

“We don’t know when this is going to come out,” says McDonald. “NCBA is preparing both economic and legal assessments to prepare for challenging the guidance in court.”

Barrasso takes a stand
Congress has been engaged in the Waters of the United States issue. 

Recently, Senator John Barrasso (R-Wyo.) reintroduced legislation entitled Preserving Waters of the United States Act, S. 1006, in the Senate. S. 1006 would prevent the guidance from being finalized and would also prevent its substance from being used as the basis for any rulemaking regarding the scope of the Federal Water Pollution Control Act. 

Kelsey Tramp is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

Washington, D.C. – On April 10, Neil Gorsuch was sworn in as the 113th justice of the Supreme Court of the U.S. to replace the late Justice Antonin Scalia.

Harriett Hageman of Hageman Law, P.C. said that she is very excited about Justice Gorsuch and his approval as a Supreme Court justice.

“He’s got a funny sense of humor in his writing, and it’s really a delight,” she said. “It’s important to listen to his words.”

Judicial decisions

Hageman explained that Gorsuch has made a number of interesting decisions and has written a number of opinions.

“In one case, Judge Gorsuch wrote the majority opinion and the concurring opinion,” she said. “I’d never seen that before.”

In the majority opinion, Hageman summarized that Gorsuch expressed concern that agencies are overruling judicial decisions through statutes, which is a situation that he called “bizarre” in a constitutional republic.

“We have three branches of government, and he’s saying that, through regulatory control, our executive branch is overturning judicial decisions,” Hageman explained.

In his concurring opinion, Hageman continued that Gorsuch emphasized that the practice of the executive branch overruling the legislative branch is wrong and further said that the practice was “more than a little difficult to square with the constitution.”

“Maybe the time has come to face this behemoth,” Gorsuch added.

Steadfast judiciary

Hageman also expressed excitement for Gorsuch because of his beliefs that the judiciary branch should remain steadfast through the changing political atmosphere.

“He says that we can’t have a 180-degree turns just for political reasons,” Hageman explained. “The judiciary should be steadfast. Our laws should always mean the same thing to the same people, and they should be applied uniformly.”

She noted that if laws aren’t applied uniformly across administrations, they are arbitrary and capricious, and as a result, constitutional rights are affected.

Overall opinions

Hageman continued that Gorsuch’s credentials are “impeccable.”

Wyoming’s Sen. Mike Enzi agreed, adding that Gorsuch is “an admirable choice, not only because of his unquestionable legal experience but because of his knowledge and understanding of the West.”

Gorsuch is a native of the West, and his mother was born in Casper.

“His family built the Wolf Hotel in Saratoga before Wyoming was even a state,” Enzi explained, “and he has served for over a decade as a judge on the 10th Circuit Court of Appeals, which hears appeals rising from legal disputes in Wyoming and other western states.”

Enzi added that Gorsuch values and understands the Constitution, and he holds the belief that judges are obligated to apply the law, rather than rewrite the law.

To drive home this point, Gorsuch once wrote, “Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”

“I wasn’t very familiar with Judge Gorsuch before this whole process,” Hageman commented. “After seeing him on the list of nominees, I did some studying as to who he was and what he is, and I’m very pleased with Judge Gorsuch and where he stands.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

Riverton – The 29th Annual Fremont County Farm and Ranch Days took place in Riverton on Jan. 30-31. Over 100 people attended the event sponsored by the University of Wyoming Cooperative Extension Service. 

Larry Bentley, Eastern Wyoming program coordinator for the Wyoming Department of Agriculture, presented on the Wyoming Agricultural and Natural Resources Mediation Program.

Benefits of mediation

The program is available to producers, government agencies, agriculture business owners and natural resource managers to resolve disputes in a voluntary, confidential, low-cost and timesaving way.

“I begin by having each disputing party tell their story,” Bentley explained. “We follow common courtesy rules, set expectations for the mediation process, and, if an agreement is not reached, we decide what the consequences will be.” 

“Mediation is important to begin early on – don’t wait until the fight is heated, as it is less likely to resolve the issue,” said Bentley. “Usually a request for mediation does not prevent you from trying other processes in the appeal, if mediation is not successful.”

The purpose of mediation is to reach a point where both parties are happy with what has been decided upon.

There are 50 trained mediators throughout the state that specialize in different areas. Bentley specializes in range mediation for grazing permits and easement/access issues. 

Mediation as a tool

U.S. Department of Agriculture (USDA) agencies are required to provide the opportunity to request mediation as part of the agency’s appeal process. It is important to pay attention to the timelines laid out in the adverse decision letters regarding credit issues, denial of disaster payments or grazing on public lands. If mediation is not requested during the required time period, it is hard to obtain satisfactory agreement for both sides.

“Unlike an arbitrator’s ruling, the decision made in mediation will be mutually agreed upon,” Bentley said. “Mediation allows you to discuss the circumstances and ways to prevent the conflict from happening again.

“Mediation is a great tool if you have a problem with your BLM Range Conservationist or U.S. Forest Service (USFS) District Ranger with trespassing or reduced AUMs (Animal Unit Months),” explained Bentley. “The USFS is required to include a time period for mediation as part of the adverse decision process. The BLM is not, but they are obliged to participate if you request it.”

Technical review and grazing

With grazing permit issues, a Technical Review Team (TRT) can assist permittees and the land agencies in evaluating the grazing allotment and in reaching agreement on management decisions. Members of the TRT must specialize in range management and have a broad background in public land issues. If the dispute involves an endangered species, like sage grouse, the TRT might need to involve a Wyoming Game and Fish wildlife biologist.

“TRTs are an effective way to bring a science-based approach to resource disputes and the management of public lands,” Bentley said. “The TRT members evaluate the allotment and compile a peer-reviewed document on the conditions of the range. As a third party monitoring report, the TRT’s evaluation will stand up to scrutiny if the dispute goes to court.

“Using a TRT within mediation brings the health of the land back into focus with scientific data and often results in suggested solutions that neither party had thought of before. Quite often the BLM or USFS will stand by their decision until other information is available.”

While mediation and the TRT review is extremely helpful in grazing disputes, most often they do not result in a total reversal of reduced AUMs. The process has successfully pushed a 50 percent cut to a 35 percent reduction, though.

Once AUMs are deferred, you have to prove that the forage is there to have the AUMs returned. Along the Tongue River, 13 permittees were successful in gaining AUMs back on their USFS allotment through monitoring and documentation of grazing practices by a TRT. 

Settling differences

“It is a lot better to settle differences out in the field through hard data rather in the court system where there are no winners,” Bentley said.

The Wyoming Agricultural and Natural Resources Mediation program fosters partnerships between private landowners and public land managers. The process creates clear expectations and promotes communication between both parties to move forward with managing Wyoming’s natural resources, wildlife and range.

Most mediation sessions take place within a few weeks of submitting the request. The program is low-cost, and if you are mediating with an USDA agency, there is no charge for the process. 

To learn more about the Wyoming Agricultural and Natural Resources Mediation Program, visit wyagric.stat.wy.us/division/nrp/mediation-program.

Melissa Hemken is a correspondent for the Wyoming Livestock Roundup. Send comments on this article to This email address is being protected from spambots. You need JavaScript enabled to view it..

Spill Prevention Control and Countermeasures Compliance by Keith Kennedy

Although we have discussed the issue of Spill Prevention Control and Countermeasures (SPCC) plan before, it may be vital to your operation that you comply with the SPCC rule. In speaking with several petroleum jobbers over the past several weeks, we have learned that many of the jobbers will not be delivering fuel to locations if they do not have an SPCC plan in place, beginning on May 1, 2013. You should contact your jobber immediately to determine if you will be able to receive bulk petroleum deliveries after May 1.

If your operation does not have tank capacity greater than 10,000 gallons of petroleum products and capacity greater than 1,320 gallons, you may self-certify a SPCC plan. 

To help you create this plan for your operation, a partner of Wyoming Ag-Business Association, the Asmark Institute, has developed an online tool for you to self-certify. The tool can be found at asmark.org/mySPCC. When you complete the process of self-certification via the Asmark website, you will have created a .pdf file that you should print, file and observe. You may want to print a second copy to provide to your petroleum jobber. The data you enter during self-certification will not be retained by Asmark and will not be reported to EPA. 

Remember that if you have more than 10,000 gallons of storage capacity on your farm or ranch, you will need to contact a Professional Engineer to develop and certify a plan for your operation.

As you complete self-certification on mySPCC, you will also need to have the name, address and phone number of a cleanup contractor in your area, and phone numbers for the State Emergency Response Commission, who can be reached in Wyoming at 307-777-4900, and the Local Emergency Planning Committee, which can be found under County Government in your phone book, as well as phone numbers for local and state law enforcement, fire department and ambulance.

While we have resisted the SPCC regulation as an organization for many years, we want our customers, the farmers and ranchers of Wyoming to remain profitable, prosperous businesses. 

Thank you for your attention; we hope your fuel containment berm receives some much needed precipitation.