Preliminary analysis of EPA/Corp’s Waters of the U.S. Proposed Rule

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].