Beltway Beef discusses WOTUS with Scott Yager, NCBA Environmental Counsel
Chase Adams discusses legislative and litigation efforts against the EPA’s WOTUS rule with NCBA Environmental Counsel, Scott Yager.
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EPA Releases Waters of the U.S. Rule
The Waters of the U.S. (WOTUS) Rule was finalized by EPA and Army Corps on May 27, 2015. MSGA is currently reviewing the rule, but initially, it appears few changes have been made from the proposed rule. In a number of cases, the rule represents an expansion of federal jurisdiction beyond current practices and the limitations affirmed by the Supreme Court.
The agencies received over 1 million comments on the WOTUS proposal before they closed the second comment period on November 14, 2014. MSGA, working with NCBA, also viewed the new rule as a:
- Increase in jurisdiction over ephemeral streams
- New expansive jurisdiction over adjacent waters
- Many ditches subject to federal regulation
MSGA provided extensive comments in opposition to the proposed rule, including:
- Removal of intermittent and ephemeral non-navigable streams from the rule.
- Remove the inclusion of ditches in the definition of tributary.
- Remove the provision that would make isolated wetlands, ponds and other open waters per se jurisdictional if they are located within a riparian area or floodplain.
- Withdraw the Interpretive Rule that limits the Sec. 404 “normal farming, silviculture and ranching” exemption to 56 NRCS practices, which limits landowner protections.
The Agencies have estimated the rule will cost as much as $306 million annually. MSGA is currently working with others to consider possible avenues to rewrite or halt implementation of the rule. Due to the concern over the rule, there are currently two bills in Congress to halt the proposed WOTUS Rule.
The first is the Regulatory Integrity Protection Act (H.R. 1732). This bill calls for the EPA to withdraw their rule and has passed the full House by a bi-partisan vote of 261-155.
In Senate, the Federal Water Quality Protection Act (S. 1140) was introduced to Environment and Public Works Committee. This bill would also require the EPA and Army Corps to withdraw the WOTUS proposal and develop a new proposal that would reach consensus with state and local governments on defining “Waters of the United States.” Senator Steve Daines is cosponsor of S. 1140 legislation.
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Meet the American Fork Ranch | Environmental Stewardship Award Winners
Montana’s ranchers depend on the land and its resources to be successful business enterprises. As such, it is imperative to be good stewards of their environment and its resources, implementing practices that promote sustainability and conservation. Since its inception in 1991, the Environmental Stewardship Award Program (ESAP) has honored ranchers across the United States who implement these practices and are great examples of being stewards of their resources.
For the past 25 years, Montana Stockgrowers Association has proudly sponsored the Montana ESAP program, and with support of the Montana Beef Council, recognize this year’s Montana recipient, the American Fork Ranch of Two Dot, as a ranch going above and beyond to implement good stewardship practices for their land, resources, wildlife and community.
The American Fork Ranch (Facebook), a commercial cow-calf operation in Wheatland and Sweet Grass counties, is owned by the Stevens Family and is managed by Jed and Annie Evjene. Jed is a long-time active member of the Montana Stockgrowers Association and currently serves as Director of the South Central district for the Association.
“The Stevens family, Annie and I, along with all of our crew could not be more proud to receive this recognition,” says Jed Evjene. “Over the past 17 years, we’ve worked hard to preserve the legacy of this ranch, improve its pastures, croplands and cattle. Making a ranch like this work while being conscious of the environment around us takes a good team and we’re honored to be Environmental Stewardship Award recipients.”
The ranch, established in 1882 as a sheep operation, was purchase by Colonel Wallis Huidekoper and designated “The American Ranch”. An idealistic soldier, Huidekoper built a series of whitewashed and red-roof structures along a plumb line, to form an orderly village that still stands today. In 1945, Col. Robert T. Stevens purchased the operation and renamed it as “The American Fork Ranch”. Steven’s vision was that the ranch would remain as a consistent and economically viable unit in the community, rather than a vacation or leisure home for future generations of the family.
As current ranch managers, Jed and Annie Evjene, joined the ranch in 1998, a consensus among the owners had already began to refocus the ranch’s efforts to be better stewards of the land, conserve their natural resources and ensure the ranch’s economic and environmental sustainability. The changes focused on the principles of utilizing the best available scientific knowledge and business practices, enhancing stewardship values with long-term perspectives to invest in the land and environment, and to preserve the ranch’s historic value and beauty.
Over the past 17 years, the Stevens and Evjenes families have focused on establishing relationships among all key aspects of the ranch: rangeland, water, crop production, cattle herd, wildlife, cottonwood forests, employees, family, community and the beef industry to integrate a model of sustainability. These cooperative efforts have led to relationships and projects in coordination with professionals from numerous universities, state and federal agencies, area and state Stockgrower organizations, and several youth programs.
The Evjenes have a knack for intensive record management, allowing them to use that information to tract what works and what does not when managing the ranches resources. The results have been implementing grazing practices, with the use of more than 25 miles of interior fencing, 15,500 feet of stock water pipeline, spring water development, and weed control to develop grazing systems that better utilize resources in a manner that complements the landscape and environment.
The cowherd at the American Fork has been managed to adapt to its environment over the past two decades. Reducing cow size, along with management of grazing and water systems, has allowed for better and more uniform utilization of forage supplies, increased calf weaning weights, minimized cow inputs and overall improvements in cow efficiency and operation sustainability. The calves are raised and marketed without the use of artificial hormones or supplements, and have shown consistent adaptations to market demands using improved herd genetics. A severe drought in 2012 threatened feed supplies for the herd, but thanks for foresight in grazing management and temporary herd reduction, the ranch survived the drought period with minimal negative impacts.
Today, the American Fork Ranch is home to a diverse population of plant species and managed wildlife populations. Intensive record keeping, over a decade of range monitoring, water development projects and weed management have led to pasture conditions that promote diverse plant species and thick stands of stockpiled forage for year-round grazing. A heavy focus on riparian area management has allowed for recovery of plant species, Cottonwood forest regrowth, improved water quality and enhanced wildlife habitat, even in the presence of livestock grazing.
“Even though the Stevens family may not live here year round, they are all involved in the ranching operation,” says Annie Evjene. “Especially the third and fourth generations of the Stevens family know a lot about the ranching business and are trying to carry on to the next generation.”
“The Stevens kids are like our own. When they come to the ranch, they jump right in with the crew, can run any piece of equipment, move cattle and are excited about sharing the experience of this ranch with others. It’s an all-around team effort,” says Jed.
As recipient of this year’s Montana ESAP recognition, the American Fork will submit an application this month for the regional ESAP awards, to be announced in July 2015. Throughout 2015, Montana Stockgrowers will continue to share more about the American Fork Ranch, the Stevens and Evjene families, and their work as examples of Environmental Stewardship within the Montana ranching community.
To learn more about the Montana Environmental Stewardship Award program, click here. The Montana ESAP program is partially sponsored by the Montana Beef Checkoff programs.
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EPA Hands Over Maps Detailing the Extent of their WOTUS Proposal
WASHINGTON (Aug. 27, 2014) –The House Committee on Science, Space, and Technology released maps today of waters and wetlands the Environmental Protection Agency has to-date refrained from making public. After multiple requests, the Agency finally handed over the maps to the committee, which appear to detail the extent of the “Waters of the United States” proposal.
“Given the astonishing picture they paint, I understand the EPA’s desire to minimize the importance of these maps,” said Rep. Lamar Smith (R-Texas), Chairman of the House Science Committee, in a letter to EPA Administrator Gina McCarthy. “But EPA’s posturing cannot explain away the alarming content of these documents. While you claim that EPA has not yet used these maps to regulate Americans, you provided no explanation for why the Agency used taxpayer resources to have these materials created.”
Knowledge of the maps came as the Committee was doing research in preparation for a hearing regarding the proposed “Waters of the United States” rule. The maps were kept hidden while the Agencies marched forward with rulemaking that fundamentally re-defines private property rights, said Chairman Smith.
“It is deplorable that EPA, which claims to be providing transparency in rulemakings, would intentionally keep from the American public, a taxpayer-funded visual representation of the reach of their proposed rule,” said Ashley McDonald, National Cattlemen’s Beef Association environmental counsel. “Unfortunately, it is just another blatant contradiction to the claims of transparency this Administration insists they maintain.”
These maps are very similar to the maps produced by NCBA and other agricultural groups, which also showcase the EPA’s extensive attempt to control land across the country. These maps show individual states facing upwards of 100,000 additional stream miles that could be regulated under the proposed regulation.
“This is the smoking gun for agriculture,” said McDonald. “These maps show that EPA knew exactly what they were doing and knew exactly how expansive their proposal was before they published it.”
The maps are available on the House Committee website here. The Montana map is available by clicking here (maps are large files and may take a few seconds to load).
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Preliminary analysis of EPA/Corp’s Waters of the U.S. Proposed Rule
Ariel Overstreet-Adkins, MSGA legal/policy intern, has been working this summer to evaluate the EPA WOTUS rule changes. To learn more, contact the MSGA office, (406) 442-3420. To submit comments, visit www2.epa.gov/uswaters before October 20, 2014.
MSGA is currently undertaking a comprehensive legal analysis of the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) proposed change regarding the definition of Waters of the U.S. (WOTUS) under the Clean Water Act (CWA). We hope to have our comments drafted by the end of August to provide members with guidance about submitting your own comments, which are due by October 20. The proposed language itself is only about a page and a half in length. [View our online newsletter to read] The language would apply to 12 different sections in the Code of Federal Regulations. MSGA is also engaging with the Interpretative Rule that accompanied this proposed rule (see side bar).
One thing is certain as MSGA engages in a preliminary analysis; this proposed rule does not achieve the EPA and Corps’ goals of clarity and simplicity. There are many ambiguous words and phrases that could be interpreted in any of a number of ways. Our main areas of concern are on the definition of tributary which would include ditches. There are a couple of exemptions as it relates to ditches, but we are unsure how applicable those will be in Montana. Important words in the proposal are not defined, such as “upland,” “significant” in significant nexus, “other waters,” and “through another water.” The role of groundwater is also a murky area. While the EPA claims this rule does not regulate groundwater (and the CWA itself specifically says it does not) the new rule proposal includes language about “shallow subsurface hydrologic connection” between two bodies of water. That phrase is not defined and leaves confusion about the role of groundwater, whether it is regulated under this proposal, or if it can be used to establish a connection between two bodies of water with no surface connection for the sake of regulation.
Our biggest question at this point is what are we doing so poorly in the state of Montana that the EPA feels they need to obtain more jurisdiction over our waters? We have strong laws and regulations in the Montana and ranchers work hard to protect the land and the water that is so vital to their everyday operations. Our constitution recognizes and confirms existing rights to any waters for any useful or beneficial purpose and states that “all surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.” (Article IX, Section 3(3)).
MSGA will continue to grapple with these questions as we analyze this proposed rule and its potential impacts on ranching in Montana. Earlier this month, MSGA staff attended the Montana Legislature’s Water Policy Interim Committee in Helena where this rule was discussed. Staff also had an excellent conversation with Senator Jon Tester’s staff about the proposed rule and our concerns.
To read the full proposal and other documents (including the EPA’s scientific and economic analyses); visit the EPA’s website at www2.epa.gov/uswaters. If you have any questions or comments about the proposal, especially comments about how this proposal might affect you personally, please call Ariel at (406) 930-1317 or send an email to [email protected].
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Montana Water Policy Updates – Ditches, CSKT, Adjudication and More
The following update is taken from our Land Use & Environment Committee meetings during Mid Year in Miles City last month, courtesy of Krista Lee Evans, Blake Creek Project Management. Krista was generous enough to provide our members an update via video conference using Google’s Hangout On Air product. Our ranchers were able to see and listen to Krista’s update even though she wasn’t able to physically be in Miles City with us. It’s great to see ranchers embracing technology, which allows us to open more doors for better communication.
Listen to Krista’s presentation and a following Q&A session on the podcast at the end of this post.
Ditches – Rep Connell is continuing to push for a change in ditch rights. This issue was in front of the Water Policy Interim Committee as HJ 26. A recent Colorado Supreme Court decision was discussed in detail. The decision provided for a three-pronged test that if met a property owner could move a ditch with consent of the ditch easement owner. AGAI and Montana Water Resources Association both opposed the approach of trying to “balance the property rights” due to the fact that as dominant estate owners, we have purchased the easement right and there should be no “balancing”. I also suggested that if property owners do not want a ditch on their property then they should buy unencumbered property.
CSKT – CSKT has filed a lawsuit in federal district court stating that they not only own the water rights for the water going through the reservation but they own the water. This will be a significant issue in the court and we need to pay attention. There are some interested in continuing negotiations with the tribe but there are others that are unwilling to continue negotiations. The tribe has stated publically that they would still move forward with the negotiated compact but they are not willing to make significant changes (other than dealing with the management of the irrigation project).
The water policy interim committee has created a work group to review the model used during negotiations. The work group will report back to WPIC with any questions, concerns, or suggestions.
Adjudication Funding – The Water Court and DNRC came to the Environmental Quality Council meeting outlining the future of the adjudication. The examination is done. This is a huge accomplishment and was completed a year ahead of the statutory deadline. The Water Court did issue an order for reexamination of the verified basins. In order to complete the adjudication through the first decree phase in all basins as well as decree enforcement support from the DNRC to the Water Court additional funding will be needed. The two entities are going to request $14.6 Million. They did not disclose where they want to get the money.
State Water Plan – Different basins have put together their proposals based on different interest groups input. As this comes into a final statewide plan, we need to be fully engaged. There are significant suggestions in these various basin plans including:
- Having a professional staff of water commissioners that are under the control of the water court or DNRC.
- Requiring water quality monitoring at all stream gauging stations.
- Requiring a minimum instream flow
- Requiring statewide measurement devices.
- Prioritizing the types of beneficial uses.
- Requiring a change of use to go from flood to sprinkler.
Water Court Role – The Water Court is having multiple discussions across the state discussing expanding the role of the water court. Expansions being discussed include having the water court handle all appeals from DNRC rather than the district court, having all water commissioners managed by the water court, and multiple other items. I would suggest that the water court needs to finish its existing job of completing the adjudication before it takes on any additional responsibilities.
For more information about how MSGA represents Montana ranchers on water policy issues, please contact our Director of Natural Resources, Jay Bodner, at [email protected].
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NCBA and PLC Support the Modernization of Endangered Species Act
(via NCBA Beltway Beef) The Endangered Species Act has become one of the most economically damaging laws facing our nation’s livestock producers. When species are listed as “threatened” or “endangered” under the ESA,the resulting use-restrictions placed on land and water, the two resources upon which ranchers depend for their livelihoods, are crippling.The ESA has not been reauthorized since 1988 and is in great need of modernization.
The National Cattlemen’s Bee Association and the Public Lands Council support all attempts to modernize and streamline the ESA and have provided several recommendations to Congress. The House of Representatives Endangered Species Act Congressional Working Group released a report in February 2014 which gave several recommendations for ESA improvements.The report concludes that the ESA “while well-intentioned from the beginning,must be updated and modernized to ensure its success where it matters most: outside of the courtroom and on-the-ground. ”The working groups’ recommendations echo our organizations’ recommendations.
NCBA and PLC submitted a letter of support this week for four bills that are a direct result of the findings that are covered in the working groups’report.
H.R.4315, the 21st Century Endangered Species Transparency Act introduced by Representative Doc Hastings (R-WA),requires data used by federal agencies for ESA listing decisions (including proposed listings) to be made publicly available and accessible through the Internet. The public should be able to see the information that their government is using to make listing decisions that ultimately affect everyone.
H.R.4316, the Endangered Species Recovery Transparency Act introduced by Representative Cynthia Lummis (R-WY), requires the Interior Secretary to report and comprehensively track ESA litigation costs, including attorneys’ fees, and post it on the internet. We must hold people accountable for the monetary resources,taxpayer money that is spent.
H.R.4317 the State, Tribaland Local Species Transparency and Recovery Act introduced by Representative Randy Neugebauer (R-TX),requires the federal government to disclose to affected states all data used in ESA prior to any listing or proposed listing decision. It also ensures that “best available scientific and commercial data” used by the federal government will include data provided by affected states, tribes,and local governments.
H.R.4318, the Endangered Species Litigation Reasonableness Act introduced by Representative Bill Huizenga (R-MI),caps hourly fees paid to attorneys that prevail in cases filed under ESA, consistent with current law under the Equal Access to Justice Act.Currently, no cap on attorney fees exists under the ESA allowing attorneys to be awarded massive sums of taxpayer money.
The ESA,while designed to protect species from endangerment of extinction, has proven itself o be ineffective and immensely damaging to our members’ ability to stay in business. Less than two percent of species placed on the endangered list have ever been deemed recovered.
Environmental activist groups’ list-and-litigate routine costs not just producers, but taxpayers, as well.These groups have a habit of suing the federal government to force the listing of a species,then suing to prevent species delisting—even after recovery goals have been met.Their legal expenses are often reimbursed by the American taxpayer. It is no small wonder when environmental radicals can keep themselves well-funded by a seemingly endless stream of taxpayer dollars that so many species have been listed and so few have been delisted. While not a complete fix, these four bills take some of the necessary steps to repairing this broken law.
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Montana Stockgrowers Seeking Applications for 2014 Environmental Stewardship Award
Helena, MT – Do you know a Montana rancher who is a leader in stewardship, implementing conservation practices to ensure the social, economic, and environmental sustainability of their operation? Encourage them to apply for the Montana Environmental Stewardship Award, presented by the Montana Stockgrowers Association (MSGA). Applications for the 2014 award are due June 30.
Each year, MSGA honors Montana ranches that exemplify environmental stewardship and demonstrate commitment toward improved sustainability within their communities. This award recognizes Montana ranchers who are at the forefront in conservation and stewardship and are willing to serve as examples for other ranchers.
“Montana ranchers are leaders in this country when it comes to being stewards of our environment and conserving the natural resources that help make Montana such a great state to live in,” said Ryan Goodman, MSGA manager of communications. “We are asking the community to get involved in helping us identify ranches that really go above and beyond when it comes to environmental stewardship and conservation in their local areas.”
2013 Montana ESAP Award Winner – LaSalle Ranch, Havre, MT. Read more in a previous post.
Ranches wishing to apply for the award and recognition are asked to complete an application packet (available at mtbeef.org/mesap); due to the MSGA office by June 30. Nominations can be submitted by contacting the MSGA office. Ranches must be a member of the Montana Stockgrowers Association to qualify for the award. A committee, which will include representatives from Montana Stockgrowers, Montana Beef Council, past Environmental Stewardship Award winners, and others invested in Montana stewardship and conservation will evaluate the applications after all applications are completed.
The ranch chosen for the award will be announced at MSGA’s Annual Convention and Trade Show in Billings, Dec. 11-13 at the Holiday Inn Grand Montana. The Montana ESAP winner will then work with MSGA staff to prepare their application for the Regional and National Award competition, which is typically due in early March of the following year.
Since 1992, Montana Stockgrowers has honored 21 state winners, ten of whom went on to win the regional award and two named national award winners. To learn more, visit www.mtbeef.org/mesap, or contact Ryan Goodman at [email protected] or (406) 442-3420. The Montana Environmental Stewardship Award is sponsored by MSGA’s Research and Education Endowment Foundation and funded by Montana Beef Producers with Checkoff Dollars.
Listen to this post on the SoundCloud Podcast!
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Senate Committee Passes Grazing Improvement Act
(The following is a press release from the Public Lands Council)
WASHINGTON (November 21, 2013) — The Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) hailed the Senate Committee on Energy and Natural Resources for passage of S. 258, the Grazing Improvement Act of 2013.
The legislation, sponsored by Senator John Barrasso (R-Wyo.) comes as a means to codify existing appropriations language — adding stability and efficiency to the federal grazing permit renewal process. The bill passed by the Committee will extend the term for grazing permits from a minimum of 10 up to 20 years, providing for added permit security. The U.S. Forest Service (USFS) and the Bureau of Land Management (BLM) have consistently — for more than a decade — carried a backlog of grazing permit renewals due to overwhelming and unnecessary National Environmental Protection Agency (NEPA) assessments. This bill provides sole discretion to the Secretaries of Interior and Agriculture to complete the environmental analysis under NEPA while allowing for an analysis to take place at the programmatic level.
“The act is vital for ensuring the fate of our producer’s permits — livelihoods are depending on the efficiency of the system — which undoubtedly needs restructuring,” said Scott George, NCBA president and Wyoming rancher. “Not only will the bill codify the language of the decades old appropriations rider, it will also allow categorical exclusions from NEPA for permits continuing current practices and for crossing and trailing of livestock. Additionally, it will allow for NEPA on a broad scale, reducing paper pushing within the federal agencies.”
The bill that passed was an amendment in the nature of a substitute which included troubling language, creating a pilot program which would allow for limited “voluntary” buyouts. These “voluntary” buyouts are not actually market based, due to outside influence. Where voluntary relinquishment of a rancher’s grazing permit occurs, grazing would be permanently ended. New Mexico and Oregon would be impacted — allowing for up to 25 permits in each state, per year to be “voluntarily” relinquished.
“PLC strongly opposes buyouts — voluntary or otherwise,” said Brice Lee PLC president and Colorado rancher. “Ultimately, buyouts create an issue for the industry due to the wealthy special interest groups who work to remove livestock from public lands. The language in the amendment addresses ‘voluntary’ buyouts; however, radical, anti-grazing agendas are likely at play. Litigation and persistent harassment serve as a way to eliminate grazing on public lands—and could force many ranchers into these ‘voluntary’ relinquishments, unwillingly. There can be no ‘market based solution’ in which any given special interest group is able to ratchet up ranchers’ cost of operation, and artificially create a ‘voluntary’ sale or relinquishment.”
Nevertheless, both Lee and George agree the bill is a strong indication that Senators from both parties recognize the current system is broken and must be fixed to provide stability for grazing permit renewals; despite the buyout language.
“Passage out of committee is a feat in itself — we applaud the efforts of Senator Barrasso and we are hopeful the bill will continue to improve as it advances in the Senate,” George said.
PLC has represented livestock ranchers who use public lands since 1968, preserving the natural resources and unique heritage of the West. Ranchers who utilize public lands own nearly 120 million acres of the most productive private land and manage vast areas of public land, accounting for critical wildlife habitat and the nation’s natural resources. PLC works to maintain a stable business environment in which livestock producers can conserve the West and feed the nation and world.
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NCBA Environmental Stewardship Award Calls for Entries
DENVER — The 24th annual Environmental Stewardship Award Program (ESAP) has officially opened its nomination season for 2014. Established in 1991 by the National Cattlemen’s Foundation (NCF) and the National Cattlemen’s Beef Association (NCBA), the program has recognized the outstanding stewardship practices and conservation achievements of U.S. cattle producers for more than two decades. Regional and national award winners are honored for their commitment to protecting the environment and improving fish and wildlife habitat while operating profitable cattle businesses.
Seven regional winners and one national winner are selected annually by a committee of representatives from universities, conservation organizations, federal and state agencies, and cattle producers. The nominees compete for regional awards based on their state of residency, and these seven regional winners then compete for the national award. Candidates are judged on management of water, wildlife, vegetation, soil, as well as the nominee’s leadership and the sustainability of his or her business as a whole.
“America’s cattlemen and women have always been focused on environmental stewardship and conservation, and these awards give us a chance to celebrate their dedication,” said NCBA President Scott George. “Over the past two decades, the ESAP program has inspired cattle producers to try new techniques, and shown the world that we are the true environmentalists. If you haven’t taken the opportunity in the past to nominate a ranch family you know, now is the time!”
Any individual, group or organization is eligible to nominate one individual or business that raises or feeds cattle. Past nominees are eligible and encouraged to resubmit their application; previous winners may not reapply. Along with a completed application, the applicant must submit one nomination letter and three letters of recommendation highlighting the nominee’s leadership in conservation.
The program is sponsored by Dow AgroSciences, the U.S. Department of Agriculture’s (USDA) Natural Resource Conservation Service (NRCS), the U.S. Fish and Wildlife Service, the NCF and NCBA.
Applications for the 2014 ESAP award are due Mar. 7, 2014. For more information and a complete application packet visit: www.environmentalstewardship.org. – See more at BeefUSA.org.