EPA’s Waters of the U.S. Changes Impacts Ranchers and Water Quality

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On Friday November 14th, the Montana Stockgrowers Association (MSGA), Montana Association of State Grazing Districts (MASGD), Montana CattleWomen (MCW) and the Montana Public Lands Council (MPLC), submitted comments to EPA regarding the Proposed Rule regarding the definition of “Waters of the U.S.” under the Clean Water Act .

Montana has long been known as an agricultural state. Farming and Ranching contribute billions to the state’s economy as Montana’s largest business sector. In fact, there are 2.5 cattle for every Montana resident. Over 28,000 farms and ranches are in Montana today, each working every day to conserve and sustain the environment we all call home.

One of the most pressing issues for our members in 2014 has been proposed changes to the Clean Water Act from the Environmental Protection Agency. The EPA wants to broaden their definition of “Waters of the U.S.” which would increase their jurisdiction to regulate, not only more water, but also potentially, much of the land surrounding those waterways.

Ranchers rely on clean water for their crops and livestock and are often at the front line of maintaining and improving water quality to sustain and conserve our environment. Irrigation plays a critical role in farming and ranching in Montana, whether it is for growing forages or crops. EPA’s proposed rule could change the agency’s jurisdiction when it comes to regulating both land and water that Montana farmers and ranchers depend on for a living.

As organizations representing farmers and ranchers, who have cared for the land for many generations, we believe our members do a great job of conserving and sustaining a clean water supply, not only for their land, but also for everyone downstream, including water supplies for many wildlife and Montana communities.

Due to the complexity of the issue, there has been a large degree of confusion and uncertainty from the people directly affected by this proposed rule change. In our comments, we requested EPA to drop the proposed rule changes to the Clean Water Act. If the proposed rule cannot be dropped, we provided specific concerns and recommendations for EPA to address.

Our comments included the following:

  1. Remove the expansion of the Clean Water Act to intermittent and ephemeral non-navigable streams, which are defined as tributaries and per se jurisdictional under the proposed rule.
  2. Remove the inclusion of ditches in the definition of tributary.
  3. 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.
  4. The exclusions and exemptions provided under the proposed rule are unclear and too narrow to provide protections for landowners. Clarification is needed prior to moving forward with a rule.
  5. Due to inadequate input from landowners, we request the agency to immediately withdraw the Interpretive Rule that limits the Sec. 404 “normal farming, silviculture and ranching” exemption to 56 NRCS practices.
  6. The proposed rule usurps states’ rights to manage waters and land use activity. This proposed rule is an overreach that makes all waters federal, violating the Commerce Clause of the Constitution and the plain language of the Clean Water Act.
  7. Due to the proposed rule ambiguities and uncertainty, we request the agencies withdraw the rule.
  8. We would encourage the agencies to engage in meaningful discussions with the states to better define the areas, if there are any, that states feel are deficient in meeting water quality standards.

Montana’s water laws are very comprehensive, do a good job of regulating the quantity of water used by agriculture, and ensure that water quality remains a priority when it comes to impacts on our environment, wildlife and surrounding communities.

The EPA’s proposed actions on this rule making process are a strong reminder to ranchers and members of the agriculture community of the need to remain actively involved in the policymaking processes, working to keep state and federal agencies aware of the continual improvements taking place, so that we may continue being good stewards of our environment and resources.

Montana Stockgrowers Association encourages, you as members, to remain active in your communities, and be engaged in conversations surrounding these critical issues that affect our ability to produce food, fiber and fuel products for Montanans and a growing global population.  As this rule making process moves forward, MSGA will provide any updates as they become available.  We would also like to thank the members who provided additional comments on this very important issue.For further questions, please contact Jay Bodner at the MSGA office at (406) 442-3420. A complete copy of the comments submitted can be viewed by visiting http://bit.ly/WOTUScomments.

EPA changes to Waters of U.S., Beef Sustainability and Checkoff Increases | Podcast

solar filled water tankOn today’s post we follow up with a podcast from the recent summer cattle industry conference held in Denver, Colorado. A broad range of issues were discussed at the meeting, but the subject drawing the most conversation was EPA‘s proposed changes to the Waters of the U.S. rule. We provided a preliminary analysis of the proposed rule changes in an earlier blog post. Click here to read more.

Ariel Overstreet-Adkins, who has been working on comments for the issue on behalf of MSGA, attended the meeting and shared a few comments. “Some of the major concerns the panelists brought up are some of the same concerns we’ve had while looking at this proposal. These include the broad definition of tributary, the change of definition of adjacent to include all waters and not just wetlands, and a really undefined catch all of other waters. Across the board, this rule seems to increase uncertainty, even though the EPA says they’re trying to make things more certain. We believe this is going to be costly for many industries across the U.S. and not just agriculture.”

The Property Rights and Environmental Management committee members also passed a resolution to lead the development of a beef sustainability program, inclusive of the beef value chain and stakeholders, which addresses the continued advancement in areas such as economic viability, production efficiencies, animal care and handling, environmental conservation, human resources and community support. MSGA believes this is a positive move for the industry to establish and verify sustainable practices most ranchers already utilize.

The Cattlemen’s Beef Board and Committees concerning the Beef Checkoff also held meetings while in Denver. One of the highlights of those meetings comes from a working group looking at the proposed Checkoff increase to $2 per head. Several industry groups are working together on a proposal for changes.

Listen to the podcast below for more on these topics. This is just the second portion of our podcast covering the recent summer industry meetings in Denver. Stay tuned for our next podcast where we’ll talk about important policy issues discussed during the meetings, including cattle health issues including disease concerns surround the import of foreign beef and changes to the FDA’s antibiotic labeling rules. We’ll also find out more about CattleFax’s outlook for the cattle industry.

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 arieloverstreet@gmail.com.