June 30, 2015 Comments are off Montana Stockgrowers Association
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Montana and 12 Other States Challenge New EPA & Corps of Engineers Regulation

Montana water ranching updatesOn Monday (June 29), Montana Attorney General Tim Fox and 12 other states filed a lawsuit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) over the new regulation broadly expanding the definition of “Waters of the U.S.” under the Clean Water Act. The case was filed in the U.S. district court for the District of North Dakota.

In their complaint, the states contend the new definition of “Waters of the U.S.” violates provisions of the Clean Water Act, the National Environmental Policy Act, and the United States Constitution.

“Congress and the U.S. Supreme Court have rejected the very regulatory expansion that the EPA and Corps of Engineers are implementing through this new rule,” Attorney General Fox said. “This is yet another example of a federal agency acting by decree to bypass Congress and violate rights of states reserved under the law and the U.S. Constitution.”

The states assert that the EPA’s and Corps’ new rule wrongly broadens federal authority by placing a majority of water and land resource management in the hands of the federal government. Congress and the courts have repeatedly affirmed that the states have primary responsibility for the protection of intrastate waters and land management. The states argue that the burdens created by these new regulations on waters and lands are harmful and will negatively affect farmers, ranchers, and landowners. As a result, landowners will have to seek additional federal permits or face substantial fines and federal criminal enforcement actions.

“Clean water is important to all of us, and we Montanans know how to protect our waters,” Fox said. “Through our state Constitution, the 1971 Water Quality Control Act, and other legislation, we have established strong water protections tailored to the unique needs of our communities. These new federal regulations add a complicated and unnecessary layer of rules.”

The states are asking the court to vacate the rule and enjoin the EPA and Corps from enforcing the new, significantly expanded definition of “Waters of the U.S.”

Senator Brad Hamlett (D-Cascade), chairman of the legislature’s Water Policy Interim Committee, spoke in support of the lawsuit. “Montana’s Constitution states that all of the water that falls and flows within the boundaries of Montana belongs to the state for the beneficial use of its citizens,” Sen. Hamlett said. “Now we have two federal executive branch agencies, the EPA and the Army Corps of Engineers, attempting to assert control over Montana state waters by rule. This is, in my opinion, unconstitutional, a deliberate interference with our state’s most valuable resource, and must be stopped dead in its tracks. This is not about clean water, it is about jurisdiction, as Montana being a headwaters state cherishes and protects its waters and knowing the lay of the land and our waters best we definitely, constitutionally, and practically need to remain in control.”

Montana’s local governments and agricultural community also expressed their support of Attorney General Fox’s decision to challenge the new federal regulations.

“The Montana Association of Counties is pleased that Attorney General Fox is joining other states in challenging these new regulations,” said Harold Blattie, executive director of the Montana Association of Counties. “The EPA and Corps failed to consider concerns expressed by over 40 Montana counties about placing an undue burden on their ability to perform routine road maintenance. The final regulation lacks the clarity for counties to even be able to tell which roadside ditches are now under the EPA’s and Corps’ jurisdiction and which are not.”

“In our initial review of the finalized Waters of the U.S. regulation, it represents a significant expansion of federal jurisdiction beyond current practices and the limitations affirmed by the U.S. Supreme Court,” said Errol Rice, Executive Vice President of the Montana Stockgrowers Association. “The final regulation ignores state and local efforts to protect these waters and will have major implications for all Montanans. As ranchers who already have practices in place to promote water quality, we see the final regulation as problematic to implement and causing more harm and confusion rather than clarifying the law.”

“Farmers and ranchers are still very concerned with the EPA’s new regulation,” said Nicole Rolf of the Montana Farm Bureau Federation. “It takes power away from state and local governments, while at the same time burdening farmers and ranchers with unnecessary and ridiculous rules. We very much appreciate that Attorney General Tim Fox recognizes these problems and is willing to defend Montanans who make their living raising food.”

The Montana Chamber of Commerce, Montana Building Industry Association, Montana Contractors Association, and the Montana Association of Realtors are also in support of the legal challenge.

Joining Montana in the suit are the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

–Press Release, Attorney General Tim Fox

WASHINGTON, D.C. — On Monday, Senator Steve Daines released the following statement on Montana Attorney General Tim Fox and 12 other states’ lawsuit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) over the new regulation broadly expanding the definition of the Waters of the United States rule (WOTUS).

“I applaud Attorney General Tim Fox for standing up for Montana farmers, ranchers and small businesses against another egregious power grab by the Obama administration. This rule has the capability to cripple Montana agriculture and natural resources, hurt Montana jobs and threaten Montanans’ property rights.  As this lawsuit moves through the judicial system, I will continue to fight tirelessly against the EPA’s overreach to protect Montana jobs, agriculture and natural resources.”

Daines is a cosponsor of S. 1140, the Federal Water Quality Protection Act that would direct the EPA and Corps to issue a revised WOTUS rule that protects traditional navigable water from water pollution, while also protecting farmers, ranchers and private landowners.

The full text of S.1140 is available here.

June 12, 2015 Comments are off Montana Stockgrowers Association
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Beef Cattle Water Requirements Changing With Summer Heat

Dr. Rachel Endecott, MSU Extension Beef Cattle Specialist

Of the six classes of nutrients — carbohydrates, fat, protein, vitamins, minerals, and water — water is the most often overlooked, yet the most critical. Cattle performance can be affected by water intake.

Water requirements are a bit of a moving target, as feeds contain water and the metabolism of certain nutrients in the body produces water. This means that not all the water needs must be supplied as drinking water. High moisture feeds such as silages or pasture have increased water content, while harvested forages such as hay and straw contain little water. Cattle water needs are influenced by temperature, physiological stage, and weight (Table 1).

Endecott requirements of range livestock

Water intake increases dramatically at high temperatures; in fact, water requirements double between 50° and 95° F!  Table 2 illustrates the daily water requirements in gallons per 100 pounds of body weight for cattle at 90° F. This implies that a spring calving cow-calf pair would require 28 gallons of water for a 1400-lb cow plus an additional  7-9 gallons for a 350-450-lb calf (some of this increased calf water requirement can be met by milk intake).

Endecott water requirements cattle temperature

Providing unlimited access to clean, fresh water will ensure cattle performance is not negatively impacted; this goal becomes even more critical with increasing temperatures.

May 12, 2015 Comments are off Montana Stockgrowers Association
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NRCS: Montana Water Users Prepare For Low Streamflow

After a disappointing winter, Montana water users should prepare for early, below average snowmelt runoff in streams

BOZEMAN, Mont., NRCS— Warm and dry weather patterns persisted through April. Mid and high elevations peaked during the month before transitioning to melt during the last two weeks, according to snowpack data from the USDA Natural Resources Conservation Service (NRCS).

“After high hopes that the weather patterns would turn around month after month, it turned out to be a disappointing year, snowfall-wise, in Montana,” said Lucas Zukiewicz, NRCS water supply specialist for Montana.

Snowpack conditions vary widely across the state, even within river basins. Towards the end of March or early April, low elevation measurement locations melted. Higher elevations retained the early season snow through the winter, experiencing near to slightly below normal snowpacks until the end of April. At 57 percent of normal for May 1, the Missouri River basin currently has the lowest snowpack out of the three major river basins across the state. Substantial declines, due to melt and lack of precipitation, have greatly reduced the snowpack since March 1. Currently, the Yellowstone River basin has the highest percentage of normal snowpack, but it is still only 71 percent of normal for May 1. The Columbia River basin snowpack is currently 61 percent of normal for this date.

may 1 snow water equivalent nrcs

“This year, not only did our snowpacks peak below normal, they also began the runoff season ahead of schedule as well,” Zukiewicz said.  “For water users across the state, this generally means that runoff will occur earlier this year, and when it does, there will be less water.”

Streamflow Forecasts

Aside from the Columbia River basin, where above average precipitation fell in the form of rain this winter, streamflow prospects this spring and summer generally reflect the lack of snowfall. Streamflow forecasts range from near record low (42%) in the Jefferson River basin in southwest Montana to below average (80-87%) on the mainstreams of the Flathead and Kootenai River basins.

This season, river systems that do not contain reservoirs for storage, such as the Gallatin and Upper Yellowstone, will see low streamflows pass through ahead of schedule.   For water users on rivers systems with reservoirs, there is water from last year’s runoff.  Because of last year’s record-breaking snowfall, carryover runoff was stored, leaving most reservoirs near to above average for May 1.

Water year-to-date precipitation (October 1 – May 1) across the state is near to slightly below normal for this time, with the exception of southwest Montana. Precipitation this spring and summer will play a critical role in the volume of runoff experienced this year. East of the Divide, where overall precipitation conditions have been drier this year, May and June are favored for rain and high elevation snow.

“We are coming up on what is typically known as ‘mud season’ in the Montana mountains,” Zukiewicz said.”Usually, people dread this season, but this year I think many will welcome any spring and summer rain, just to have a mud season.”

Conditions vary widely within the river basins this year. For detailed information on individual basin conditions and streamflow forecast points refer to the May 1 Water Supply Outlook Report.

Below are the averaged river basin streamflow forecasts for the period April 1 through July 31. THESE FORECASTS ASSUME NEAR NORMAL MOISTURE AND RUNOFF CONDITIONS MAY THROUGH JULY.

may-june streamflow forecast period

Press Release USDA NRCS. Follow us on Twitter @NRCS_MT.

February 20, 2015 Comments are off Montana Stockgrowers Association
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Senate Committee Passes SB 262 on CSKT Water Compact

This morning, the Senate Judiciary Committee took executive action on Senate Bill 262 (Implement CSKT water rights settlement). The bill passed committee by a vote of 8-4 and will now advance to the Senate floor.

Republican Senators Chas Vincent (Libby, bill sponsor), Doug Kary (Billings) and Nels Swandal (Wilsall) joined Democrats Robyn Driscoll (Billings), Cliff Larsen (Missoula), Mary McNally (Billings), Mary Sheehy Moe (Great Falls) and Diane Sands (Missoula) to vote in support of the bill. We encourage you to reach out to these Senators in appreciation for the support of this important piece of legislation.

As you know, Montana Stockgrowers Association came out in support of the CSKT Water Compact last month. You can read our press release here.

On Monday of this week, the President Gene Curry testified in support of the Compact, SB 262, in front of the Senate Judiciary Committee. He outlined why the Stockgrowers Association supports this critical legislation:

  • The compact includes numerous protections for historic water users that would not be available through litigation.
  • In those cases where the CSKT are granted off reservation rights with a time in memorial priority date, the rights are limited in a manner to protect historic water use
  • If the compact is not ratified, water right claims filed by the CSKT will likely be larger, more senior and likely encompass a greater area of the state.
  • Regardless the outcome of the litigation it will be expensive, lengthy and disruptive to the current adjudication process

“It is important to pass this critical piece of legislation and not force thousands of family ranchers in similar situations of this type of litigation,” said Curry during his testimony.

To protect Montana’s ranchers, we need YOU to Take Action in support of the Compact.

Call your Senator and House members today and tell them to support the Compact – (406) 444-4800. Let them know that the compact is the right choice for ranchers. Individual contact information can be found on the Montana Legislature’s website.

For more information on the compact, you can go to the DNRC website and read more. MSGA will share more information about the compact in next week’s member newsletter.

January 27, 2015 1 Comment Montana Stockgrowers Association
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Stockgrowers Joins Montana Agriculture Organizations in Support of Compact

(Helena, Mont.)— The Montana Stockgrowers Association, representing the business interests of Montana’s cattle ranching sector, and the foremost organization representing Montana’s water users, the Montana Water Resources Association, have joined forces with the Montana Farm Bureau Federation to support the state of Montana’s proposed Water Compact with the Confederated Salish & Kootenai Tribes (CSKT).

“The Stockgrowers Association conducted a thorough legal analysis of the current CSKT Water Compact and through that analysis, our organization is supporting this Compact,” said Gene Curry, President of the Montana Stockgrowers Association. “It is important to protect historic water uses on and off the reservation and provide some certainty for all water right holders in Montana.”

The support of the Stockgrowers comes after the Montana Farm Bureau Federation declared their support of the Compact during the January 12th meeting of the Montana Reserved Water Rights Compact Commission and the Commission’s unanimous vote to move the Compact to the Montana State Legislature for further approval.

“We were very diligent in our review of the Compact and the impact it would have on our members if passed,” said Montana Farm Bureau Federation spokeswoman Chelcie Cremer. “Montana’s farmers and ranchers depend on reliable access to water to preserve their livelihoods.  The Compact will protect Montana’s agricultural industries and ensure water rights certainty for future generations.”

The Montana Water Resources Association also joined in supporting the Compact, citing the protection of private property and water rights that the Compact provides.

“If the Compact fails irrigators and water users will be forced to shoulder the costs of the litigation that will result,” said Mike Murphy of the Montana Water Resources Association. “Specifically, the Compact provides provisions that protect irrigators both on and off the reservation and ensure they are able to obtain access to the water resources they need. Protection of water and other property rights is of utmost importance to our organization and is an important aspect of why we support passing the Compact.”

“We are excited that the Montana Stockgrowers Association and the Montana Water Resources Association have joined FARM and the Montana Farm Bureau Federation in supporting the CSKT Water Compact,” said FARM Co-Chair and long-time Stockgrowers member, Lorents Grosfield. “These groups uniting shows that passing the Compact is truly for the benefit of all Montanans and will protect the interests of Montana’s farmers and ranchers.”

The support of the Montana Stockgrowers Association and the Montana Water Resources Association for the Compact shows the continued growth of support for the Compact among the agriculture community, irrigators, and water users across the state.

Farmers and Ranchers for Montana (FARM) is a grassroots coalition of farmers and ranchers, united with local leaders, Indian tribes, businesses and other Montanans committed to fair water policies and the approval of a Water Compact that quantifies and secures water access to the benefit of all Montanans. For more information visit www.montanawatercompact.com
###

(Joint Press Release with Farmers and Ranchers for Montana)

November 18, 2014 Comments are off Montana Stockgrowers Association
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EPA’s Waters of the U.S. Changes Impacts Ranchers and Water Quality

4 orgs logos

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.

August 27, 2014 Comments are off Montana Stockgrowers Association
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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.

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 arieloverstreet@gmail.com.