Washington commission confirms What’s Upstream stayed within state law

Washington Public Disclosure Commission Executive Director Evelyn Fielding Lopez talks to the commission at a meeting Feb. 23 in Olympia. The commission agreed with a staff recommendation to take no enforcement action against What's Upstream for failing to report its campaign to influence votes in the Legislature.

OLYMPIA — The Washington Public Commission ruled Thursday that What’s Upstream organizers did not engage in unreported lobbying of state lawmakers, clearing the advocacy campaign funded by the Environmental Protection Agency of one allegation of wrongdoing.

The three-member citizens panel adopted the staff’s conclusion that the push to ban farming within 100 feet of water fell short of lobbying. The commission voted to take no enforcement action, a recommendation that will go to the state attorney general’s office for review.

PDC Executive Director Evelyn Fielding Lopez said “reasonable minds” could differ on the finding, especially since What’s Upstream provided supporters with form letters encouraging lawmakers to impose mandatory buffers.

A PDC investigator said he couldn’t determine whether a website link to the letter alone cost more than $1,400, the threshold for triggering reporting requirements.

A bigger point for the PDC staff was that the letter and other elements of the campaign didn’t mention a specific bill.

Lopez said there wasn’t an “actual nugget of legislation” advocated by What’s Upstream, though she said the commission or Legislature may want to consider whether to tighten that interpretation of the law for future cases.

“Where’s the line? My argument is that there has to be more than a general call to contact your legislators,” Lopez said.

What’s Upstream was funded by an Environmental Protection Agency grant awarded in 2011 to the Northwest Indian Fisheries Commission.

The commission passed the money through to the Swinomish Indian Tribe, which used the federal funds to hire Strategies 360, a Seattle lobbying firm. What’s Upstream had a six-year, $655,000 budget, according to EPA records.

The tribe kept EPA informed as Strategies 360 tested pro-buffer statements with voters and crafted a media campaign. The message was that “unregulated” agriculture was killing fish and jeopardizing public health.

What’s Upstream stepped up its campaign for the 2016 legislative session, allowing supporters to send form letters through its website to lawmakers. “Feel free to personalize your message,” read a statement above the online form. “The message will be sent to various Washington senators whose votes we hope to influence.”

EPA abruptly disassociated itself from What’s Upstream last April when members of Congress took note and accused the agency of smearing farmers with an illegal lobbying campaign. An audit by the EPA’s inspector general is pending.

The PDC investigation was in response to a complaint by Save Family Farming against the tribe’s environmental policy director, Larry Wasserman; former EPA Northwest Administrator Dennis McLerran; and Strategies 360.

PDC Commissioner David Ammons said that What’s Upstream struck him as a “sophisticated” and “well-funded campaign to influence the public,” but agreed with the staff recommendation. The commission’s chairwoman, Anne Levinson, said lawmakers may want to “fine-tune” the disclosure law.

Save Family Farming director Gerald Baron said he was disappointed with the PDC ruling and that he hoped the attorney general will come to a different conclusion.

He said he was encouraged by suggestions that lawmakers review the law. The attorney general’s office and lawmakers also should examine the tribe’s position that the PDC had no jurisdiction over it, Baron said.

The PDC staff didn’t take a position on the tribe’s claim of immunity since it concluded there was no grass-roots lobbying.

Wasserman’s attorney, Wyatt Golding, told the PDC that Save Family Farming’s allegation was a reaction to the position espoused by What’s Upstream. “We think these complaints are a manifestation of that push back and an attempt to quiet Mr. Wasserman,” he said.

The EPA had no immediate reaction to the PDC decision.

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