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What’s Upstream followed EPA’s counsel on lobbying

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What’s Upstream organizers deliberately avoided advocating for specific legislation while lobbying lawmakers, following legal counsel from the EPA

What’s Upstream deliberately avoided advocating for specific legislation while lobbying for mandatory 100-foot buffers between farms and water in Washington, in keeping with legal counsel from the Environmental Protection Agency, according to newly available EPA records.

The records, released in response to a Freedom of Information Act request, document for the first time that the campaign’s lead organizer, the Swinomish Indian tribe, consciously made only a general call for buffers in a letter-writing campaign to state legislators in 2016.

The tactic paid off this year as federal and state watchdog agencies this year absolved the EPA-funded campaign of wrongdoing, concluding in separate investigations that the appeal to lawmakers was too vague to be considered lobbying, even though the self-stated goal of the media and letter-writing blitz was to influence the votes of legislators.

In an email to colleagues shortly before the 2016 legislative session, EPA Puget Sound grants coordinator Lisa Chang referred to a form letter that could be sent to lawmakers from the What’s Upstream website. The letter urged lawmakers to consider requiring buffers.

Chang, who repeatedly raised concerns about the campaign’s accuracy and tone, stated that the EPA’s Office of Regional Counsel had advised that “the concern with this feature would be if the letter advocated for/against a specific piece of legislation, ballot measure, initiative, etc.”

Federal law bars lobbying with federal funds, but the EPA’s Office of Inspector General reported this month that the $432,955 spent on What’s Upstream was allowed because the campaign did not cite specific legislation.

Gerald Baron, director of Save Family Farming, which filed the FOIA request, said Monday that the EPA’s regional counsel “created a loophole” that the inspector general accepted.

“What if the tables were turned? What if the EPA was supporting a group that wanted to repeal Washington environmental laws?” he asked. “Would the people who defend the EPA choose to defend them? We have to look at the principle and not the specific issue.”

Efforts to reach the EPA and Swinomish tribe Monday were unsuccessful.

The EPA has been periodically releasing batches of records related to What’s Upstream in response to FOIA requests. The Swinomish, a north Puget Sound tribe, obtained an EPA grant through the Northwest Indian Fisheries Commission. The tribe hired Seattle lobbying firm Strategies 360 and recruited several environmental groups to help promote the campaign.

Farm groups and some federal lawmakers viewed the advocacy campaign as a federally funded smear against agriculture. Two senators requested the inspector general’s audit last spring.

Several months before that, the EPA heard grumbling about the What’s Upstream website, which used stock photos taken outside the state to buttress the claim that farmers are unregulated polluters of water.

EPA officials met Dec. 14, 2015, to talk about the website. In an email recapping the meeting, Chang noted that Peter Murchie, a manager in the EPA’s Puget Sound recovery program, would check with the Office of Regional Counsel about the website, particularly a link that sent form letter to legislators.

“NOTE TO PETER: ORC had previously advised that the concern with this feature would be if the letter advocated for/against a specific piece of legislation, ballot measure, initiative, etc. The letter deliberately does NOT address any specific piece of legislation, measure, etc., and only calls generally for strengthened water quality protection in the state,” Chang wrote.

Washington is reputed to have among the strictest campaign disclosure laws in the country, requiring groups that spend $1,400 or more on rallying support for legislation to report their activities.

The state Public Disclosure Commission ruled the requirement didn’t apply because no bill number was cited and there was no pending legislation to mandate across-the-board setbacks.

Responding to complaints by federal lawmakers, the EPA cut off funding for What’s Upstream last spring.

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