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EPA scrambled to contain What’s Upstream fallout

The Environmental Protection Agency took 16 months to release What’s Upstream records sought by farm group; final release shows agency trying to explain itself
Don Jenkins

Capital Press

Published on September 6, 2017 2:01PM

Last changed on September 7, 2017 8:21AM

Records released by the Environmental Protection Agency concerning the What’s Upstream campaign show an agency caught between looking impotent or complicit in an advertising and lobbying campaign waged at taxpayer expense by a Puget Sound tribe to mandate 100-foot buffers between farm fields and waterways in Washington.

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Records released by the Environmental Protection Agency concerning the What’s Upstream campaign show an agency caught between looking impotent or complicit in an advertising and lobbying campaign waged at taxpayer expense by a Puget Sound tribe to mandate 100-foot buffers between farm fields and waterways in Washington.

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Environmental Protection Agency officials reacted to the wrath of federal lawmakers over What’s Upstream by going into “damage-control mode,” simultaneously saying they couldn’t have controlled the anti-agriculture campaign but nevertheless promising to fix it, according to newly released EPA records.

The records, mostly emails between EPA employees, show an agency caught between looking impotent or complicit in an advertising and lobbying campaign waged at taxpayer expense by a Puget Sound tribe to mandate 100-foot buffers between farm fields and waterways in Washington.

In response to criticism from a U.S. senator, Liz Purchia, then EPA’s head of communications, urged colleagues to “acknowledge” that “we are not associated with it.”

“Anytime EPA and ‘campaign’ is used together it is not helpful,” she wrote in an email April 5, 2016.

The email, made public Aug. 31, is among the final batch of records released by the EPA in response to a Freedom of Information Act request by Save Family Farming, a group formed to counter What’s Upstream.

The group filed its FOIA request 16 months ago and has received more than 1,000 documents, detailing EPA’s part in funding and monitoring the half-million-dollar lobbying campaign.

Since the group asked for the records, the EPA’s inspector general, the Washington Public Disclosure Commission and state Attorney General Bob Ferguson have cleared the EPA, tribe and Northwest Indian Fisheries Commission of any illegal lobbying.

“Much has been accomplished by simply exposing this activity,” Save Family Farming Executive Director Gerald Baron said Tuesday. “It would have gone on. That’s the lesson. If farmers don’t stand up for themselves, they’ll get run over.”

Dennis McLerran, EPA Northwest’s administrator during the five years the agency funded What’s Upstream, said Tuesday that he tried to tone down the campaign, but didn’t have the authority to dictate its contents.

“I do recall the lawyers at the very top level of the EPA didn’t consider it lobbying and a violation of any federal requirement,” he said. “Like I said all along, this is an unfortunate situation. I tried to get the tribe to take down the billboards and change the content of the website, but it was not something under EPA control.”

Gov. Jay Inslee recently appointed McLerran to serve in an unpaid position on the Puget Sound Leadership Council, a state agency that coordinates environmental projects.

In response to criticism from U.S. Sen. Pat Roberts, R-Kansas, about the campaign, McLerran wrote a statement April 4, 2016, that for the first time said EPA funds should not have used for What’s Upstream. “We are in the process of correcting that,” he wrote.

Purchia suggested editing the statement to say the campaign “was not approved by the agency.” The statement was released saying the campaign didn’t reflect EPA’s views.

“Let’s add the word ‘outside’ before ‘campaign’ and get this out,” McLerran wrote April 5.

The statement didn’t disclose that the tribe and its hired lobbying firm, Strategies 360, had regularly submitted written updates and yearly work plans for EPA’s approval since 2011.

As criticism of the campaign increased, EPA adopted a policy of not answering questions.

McLerran, however, was sending emails to other public officials seeking to explain his side of the controversy. “We are clearly in damage-control mode,” he wrote to Washington State Conservation Commission officials.

Said McLerran: “From my perspective, I wanted for them to know facts, as I knew them.”

The newly released emails reinforce that the tribe’s environmental director, Larry Wasserman, was forthright about his goal to pass a state law and eager to get approval to spend EPA money on billboards and radio ads to rally grass-roots support during the 2016 legislative session, capping years of preparation and collaboration with environmental groups.

“I am concerned that additional delays will make our effort less effective because we have a short legislative session and we are hoping for some impact while the legislators are in Olympia,” Wasserman wrote Jan. 26, 2016, to a manager in the Puget Sound recovery program.

The records also affirm that mid-level EPA officials had misgivings about the campaign, but their concerns were rejected as having no legal grounding.

A few weeks before the agency disavowed the campaign under congressional criticism, EPA Puget Sound program specialist Gina Bonifacino wrote an email to a colleague referring to an EPA document prohibiting spending funds on political activities, including raising public support to introduce state-level legislation.

“Hi, I did not mean for you to have to spend more time on this and I know I am sticking my neck in where I don’t belong :) it just seemed so clear to me when I read this again that this website is lobbying,” Bonifacino wrote in an email Feb. 4, 2016.

The colleague, Lisa Chang, who expressed reservations about how the tribe was spending EPA money as earlier as 2012, cited EPA attorney Garth Wright in answering Bonifacino.

“I will have to go back and look at Garth’s most recent analysis, but my understanding is that since there is no specific piece of legislation — they are just asking for stronger protection of water quality — that the lobbying restrictions are not violated. That is my layperson’s understanding,” Chang wrote.

McLerran said Tuesday that he was unaware of Bonifacino’s concern. “This is the first time I have heard of that,” he said.

The EPA redacted emails from Wright, citing an attorney-client exemption. EPA’s legal advice was upheld in an audit by the inspector general.

Media reports about EPA’s funding of What’s Upstream in March 2016 provoked a strong reaction from some federal lawmakers, which brought the campaign to the attention of top-level EPA officials in Washington, D.C.

“Holy smokes this needs attention. Do we have someone on this?” EPA Deputy Chief of Staff John Reeder wrote in an email April 20, 2016, the day one-third of the U.S. House signed a letter demanding to know why the EPA funded an “anti-farmer campaign in Washington state.”

Matthew Fritz, EPA Administrator Gina McCarthy’s chief of staff, replied: “We do. I have been talking to the (Northwest) Region about this. Long story.”



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