August 21, 2014 2 Comments Montana Stockgrowers Association
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Preliminary analysis of EPA/Corp’s Waters of the U.S. Proposed Rule

environmental protection agency epa logoAriel 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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March 25, 2014 5 Comments Montana Stockgrowers Association
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EPA and Army Corps Proposal Expands Clean Water Act Jurisdiction

National Cattlemens Beef USA logoWASHINGTON (March 25, 2014) – Today, the U.S. Environmental Protection Agency (EPA) and the Army Corp of Engineers (Corps) proposed an expansion of their federal authority over “waters of the United States.” The National Cattlemen’s Beef Association (NCBA) is deeply concerned by this vast overreach by the EPA and the Administration. Under this expansion, essentially all waters in the country would be subject to regulation by the EPA and the Corps, regardless of size or continuity of flow.

Listen to the Podcast: Beltway Beef Audio -Ashley McDonald, NCBA environmental counsel, discusses the proposed rule by the EPA and the Army Corp of Engineers to expand Clean Water Act jurisdiction and the potential impacts to cattlemen and women.

“This is a step too far, even by an agency and an administration notorious for over-regulation,” said NCBA President Bob McCan, Victoria, Texas cattleman. “This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout. These permits will stifle economic growth and inhibit future prosperity without a corresponding environmental benefit. This proposed regulation and the burdensome federal permitting scheme will only hinder producers’ ability to undertake necessary tasks and, in turn, result in an exodus of ranchers from the field.”

Almost all activities on our open land will now touch a “water of the United States” under the expanded definition. For the first time, ditches are included in the definition of a “tributary” and now will come under federal jurisdiction. Activities near a jurisdictional ditch will now require a federal permit. Many cattle operations will be required to get Sec. 402 National Pollutant Discharge Elimination System (NPDES) permits, Sec. 404 Dredge and Fill permits or Sec. 311 Spill Prevention Control, and Countermeasure (SPCC) spill plans.

“NCBA policy states we oppose expanding federal authority over non-navigable waters,” McCan said. “This proposal flies in the face of the Constitution and the Supreme Court’s interpretation of the EPA and Corps’ jurisdiction under the Clean Water Act. It takes the authority Congress granted EPA beyond the scope of Congressional intent. This is an illegal act by the EPA, and we will defend the rights of our members and producers.”

The proposal will be open for public comment for 90 days. NCBA will submit comments on behalf of the over 175,000 producers it represents.

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The National Cattlemen’s Beef Association (NCBA) has represented America’s cattle producers since 1898, preserving the heritage and strength of the industry through education and public policy. As the largest association of cattle producers, NCBA works to create new markets and increase demand for beef. Efforts are made possible through membership contributions. To join, contact NCBA at 1-866-BEEF-USA or [email protected].

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