By Michael Howell
The Ravalli County Commissioners have approved a written submission on behalf of the county on a proposed federal rule change under the Clean Water Act and a Resolution Opposing Expansion of Federal Control under the Clean Water Act. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) are considering a rule change that, according to EPA Administrator Gina McCarthy, clarifies the act in ways called for by the Supreme Court and by numerous state organizations, including numerous agriculture stakeholder groups.
“The aim of this proposal is clear,” she said, “to clear up legal confusion and protect waters that are vital to our health, using sound science so that EPA can get its job done.”
The Ravalli County Commissioners and the Montana Association of Counties (MACo), however, allege that the efforts to clarify the law are actually confusing. They see the new rule change as an unauthorized expansion of federal jurisdiction into state waters. The Commissioners believe that the Clean Water Act, enacted under the Interstate Commerce Clause, only applies to “navigable” waterways. Although the Bitterroot River has been determined to be navigable, under that definition the tributaries in the valley are not, they claim, and should not be covered under the Act.
EPA officials claim the opposite. McCarthy stated in a recent speech that under the new rule, “EPA feels confident that, under this proposal, fewer waters will be jurisdictional than under President Reagan… The bottom line is – if you didn’t need a permit before this proposed rule, you won’t need one when it’s finalized.” The EPA claims on its website that the new rule change specifically removes certain ditches from coverage, actually shrinking the federal agency’s jurisdiction.
Following MACo’s lead, the Commissioners have composed a letter that expresses concerns, not just about fears of expanded jurisdiction, but also that the federal agencies did not properly consult with state and local government in the composition of the new rule. They complain that the new rule was written prior to release of a science review of the proposal and that the comment period was insufficient. They allege that the cost/benefit analysis of implementation was flawed and that the definitions of terms such as tributary, adjacent waters, riparian areas, flood plains and uplands is unclear and will lead to confusion on the ground. They argue that the exemptions for ditches and other agricultural practices “exists on paper” but in practice are confusing and burdensome to farmers and ranchers. They also express concerns that many barrow ditches along county roads will now require a federal permit for simple maintenance and repair.
The EPA did extend the deadline for comment on the rule change twice and is still accepting public comment through November 14, 2014. The agency has provided a website, www2.epa.gov/uswaters, explaining the rule change and answering concerns about the effect of the new rule.
The agency claims that the rule change does not protect any new kinds of waters, does not broaden the coverage of the Act, and does not regulate groundwater, as some people fear.
It claims that the rule does actually reduce confusion about the CWA and clarifies what waters are covered, actually removing some ditches from federal jurisdiction under the act. The new rule also preserves current agricultural exemptions for Clean Water Act permitting, including normal farming, silviculture, and ranching practices. Those activities include plowing, seeding, cultivating, minor drainage, and harvesting for production of food, fiber, and forest products, upland soil and water conservation practices, agricultural stormwater discharges, return flows from irrigated agriculture, construction and maintenance of farm or stock ponds or irrigation ditches on dry land, maintenance of drainage ditches, and construction or maintenance of farm, forest, and temporary mining roads.
Through a memorandum of understanding, EPA, the Army Corps, and USDA have set up a process for working together to implement 56 specific agriculture conservation practices that help protect or improve water quality that will not be subject to Clean Water Act dredged or fill permitting requirements, including habitat restoration and establishing riparian forest buffers. This is being done through an interpretive rule that was published at the same time as the proposed rule and will go into effect immediately.
Farmers and producers will not need a determination of whether the activities are in “waters of the United States” to qualify for this exemption nor will they need site-specific pre-approval from either the Corps or the EPA before implementing these specified agricultural conservation practices to qualify for the exemption.
Senator Jon Tester has written a letter to EPA expressing his concerns about the new rule. He said access to clean water is critical to Montana’s agriculture industry and outdoor tourism. He said he has heard a lot of support for the rule change from Montanans concerned about clean water but he has also heard a lot of concerns from the agriculture community. He asked for clarity regarding the rule’s definition of normal farming practices, jurisdiction over farm drainage and irrigation ditches, and privacy protections.
The County Commissioners held a meeting on October 21 to consider a response letter, but because the draft letter was not made available for review until the meeting they decided to continue the discussion on October 30.
At the first meeting, Commissioner Suzy Foss said that she had heard from a lot of people saying that the commissioners should not be involved in things outside the little cocoon of Ravalli County. But when things happen elsewhere that could seriously impact the county, she said, then the county needs to be involved.
In the public comment, Terry Marasco said that if the commissioners believe that they are responsible for the condition of the waters in Ravalli County then they need a plan to address the problem of several streams in the valley that have been scientifically determined to be impaired in their status.
“If you want local control, then you also need to accept responsibility,” he said.
State Representative Ed Greef said writing a letter was a good idea, but that the situation was a conundrum and a dilemma. He mentioned how nutrient laden water from the Clark Fork had at one point filled Lake Pend Orielle with algae and seaweed. He said Mexico has seen the shrimp industry in the Sea of Cortez decimated by pesticide and fertilizer laden water from the Colorado River.
“We have to be concerned about potential federal overreach, but at the same time we have a moral and ethical obligation to deliver clean and usable water downstream,” said Greef. He said once the damage is done, it is difficult to go back up stream and straighten things out.
Kelsey Milner praised the new rule for implementing a wholistic systems approach to water management, one that recognizes connectivity and cumulative impacts and provides a mechanism for regulation based on science rather than ideology.
State Representative Nancy Ballance said that the jurisdictional questions were serious and needed to be resolved. She said the financial impacts on the county were unclear. She said they seem to brush off any direct financial impacts but then later admit that they in fact exist. She said a number of uncertainties needed to be cleared up before the public could even make meaningful comment.
A few irrigators and representatives of local irrigation districts expressed concerns that the new rule would impose the need for 404 permits from the Army Corps of Engineers to work on their ditches. They said an understaffed agency would not be able to handle the requests in a timely manner.
Ron Porter of the Ward Irrigation District talked about the long delays, up to a year or two, that he has seen in the past for ACE to respond to a permit request. He called the new rule a potential “catastrophe” for local irrigators.
At the continuation of the meeting on October 30, twenty-two members of the public were in attendance and all but one spoke in support of the Commissioners’ letter and in support of a resolution in opposition to the rule change that was added to the agenda.
State legislator Nancy Ballance once again criticized the rule change for extending federal jurisdiction over state waters.
Ward Irrigation District Chairman Ron Porter called the rule change an unconstitutional “takings,” saying, “This will be a disaster to agriculture in Montana. We can’t wait for a year to get a permit to work on a headgate.”
Dan Huls of Huls Dairy, who serves on the Board of the Corvallis Canal Company and on the Ravalli County Right to Farm and Ranch board, said, “If we don’t stop this now, they will be regulating the mud puddles in our driveways.”
Roger Raynal said that the Montana Farm Bureau was also in opposition to the rule change.
Howard Lyons said that things were going OK under EPA rules until they lowered the standards for sediment in the streams. He said if the water is taken away from the irrigators and has to go downstream it will lower the water table and water wells will dry up.
Derrell Poole said that 80% of the government was composed of agencies that have no right to make law under the constitution but do it anyway, establishing fees and fines that amount to new taxes. He called it taxation without representation. This is an area that belongs to the state and the people. He said we need to resist this type of power in the hands of the federal government. He said it was one more tool that they would use along with the United Nations in their attempt to dissolve our sovereignty.
Commissioner J.R Iman, speaking as an individual, said that there needed to be some distinction in the rule between small projects and big ones. He objected to the extension of the Clean Water Act beyond navigable streams. He said he was not arguing about the need for clean water, but how far federal jurisdiction extends and the need to keep small projects from becoming a federal issue.
“We all want clean water. It’s the life blood of the valley,” said Commissioner Jeff Burrows. “In my short time on the board I’ve seen an assault on water.” He said he hears the word “connectivity” everywhere used to connect water, even groundwater, to surface water. He said the government will write a regulation on groundwater and then use the word connectivity to connect it to surface water and vice versa.
He called the Forest Service filing for water rights for instream flows on creeks “another assault on water rights.” He called the recent court ruling invalidating exempt wells another assault along with the Water Compact Agreement.
“It seems like every time we turn around there is another assault on water rights in the Bitterroot Valley and its scary how fast and how over reaching they are. So I’m in favor of this letter,” said Burrows.
Commissioner Ron Stoltz said he was in support of the letter for many reasons. He said similar rules have shut down mining and logging and this will shut down agriculture.
Commission Chair Greg Chilcott said that the new rule was throwing out the navigability standard to make it apply to everything. He also suggested that the commission add a request for another extension of the deadline period through this spring so that the Montana legislature could respond to the proposal.
The EPA rule change and other agency information can be viewed on the internet at www2.epa.gov/uswaters
Links to the Commissioners’ letter, Senator Tester’s letter, and the Resolution can be viewed at www.ravalli.us.