August 15, 2013 


Bart Mihailovich, Spokane Riverkeeper, (509) 835.5211 or
Rick Eichstaedt, Attorney, (509) 835.5211 or
Chris Wilke, Puget Soundkeeper (206) 297.7002 or

Washington Supreme Court rules in favor of Ecology’s authority to regulate nonpoint source pollution.   

Ruling cites amicus brief filed by Waterkeepers Washington

Olympia, WA —Today, the Washington Supreme Court ruled 8-1 in support of a decision of the Washington State Department of Ecology (Ecology), defeating a challenge by rancher Joseph Lemire in a case that challenged the state’s authority to regulate the water quality impacts of cattle and other nonpoint source pollution.  Waterkeepers Washington filed a friend-of-the-court brief in support of Ecology’s position which was cited by the Court in the decision. The ruling affirms that that the State has authority under state law to regulate nonpoint source impacts from livestock notwithstanding the lack of nonpoint source authority in the federal Clean Water Act.

“This will have giant implications to address pollution across the state of Washington,” said Rick Eichstaedt, attorney for Waterkeepers Washington and the executive director of the Center for Justice, the for-impact legal advocacy organization in Spokane that houses the Spokane Riverkeeper program.

At issue was the action of Joseph Lemire, a cattle rancher near Dayton, Washington, and a 2009 order from the Department of Ecology that required him to stop allowing cattle access to Pataha Creek — a creek which was identified by the State as not meeting water quality standards.  The states asserted that Lemire’s cattle use Pataha Creek for drinking and, in turn, trample the natural shoreline and leave their fecal waste in the water, further water quality problems in the creek.

Lemire appealed Ecology’s order in 2011 to the Pollution Control Hearings Board (PCHB) objecting to the scope of the order and disputing the fact that the livestock were actually causing pollution. The PCHB ruled that “The outcome of this appeal is not dependent on testing of Pataha Creek, as the agency need only show the substantial potential for pollution to occur,” and granted Ecology’s motion to dismiss the case.”

Lemire then appealed that decision to the Columbia County Superior Court, which found in Lemire’s favor, overturning the PCHB decision.

In late September 2011, Ecology filed an appeal with the Washington State Court of Appeals to overturn the decision by the Columbia County Superior Court that prohibits Ecology from taking action to keep cattle from polluting streams and rivers.

The case was heard in front of the Washington Supreme Court in November of 2013.  With the 8-1 ruling in favor of the state of Washington, Ecology is allowed to continue as they were with regulating nonpoint source pollution under state law.

In their ruling, the state Supreme Court agreed with the argument presented by Waterkeepers Washington, stating, “As amici Waterkeepers Washington explain, ‘Lemire’s actions may not be subject to a permit requirement under the [CWA], but his actions are well within the state’s jurisdiction to prevent and control pollution within its borders.’”

In the brief presented by Waterkeepers Washington, the group argued, “Nonpoint source pollution is the largest threat to water quality in Washington and its pervasive nature requires a state wide regulatory scheme to manage the adverse environmental impacts nonpoint source pollution poses to Washington’s water bodies.”

“We think this decision makes sense – we can’t simply place onerous requirements on cities and industries,” said Bart Mihailovich, the Spokane Riverkeeper.  “Everyone needs to share the responsibility for cleaning up our waterbodies.  Lemire thought he was immune from the law and the Supreme Court rightfully found that he was wrong.”

“We applaud Ecology and the Court for standing up for clean water today.  An unfavorable ruling would have had drastic statewide implications, “ said Chris Wilke, Puget Soundkeeper and Executive Director at Puget Soundkeeper Alliance. “This is as much a victory for Puget Sound and the Columbia River as for Pataha Creek and other Eastern Washington streams. It would have affected public safety on swimming beaches and shellfish beds in coastal areas.”

Lemire could appeal the decision to the U.S. Supreme Court, however, that Court has discretion whether to hear such an appeal and usually reserves review to cases involving interpretation of federal law or the Constitution, not matters solely of state law, as this case presented.

A copy of the decision is available at