Policy Update

We had an interesting week in Helena, with both the Water Policy Interim Committee (WPIC) and the Environmental Quality Council (EQC) (EQC and Water Policy) in town for their regularly scheduled meetings. These two often meet during the same week because of the relatedness of the issues and staffing efficiencies. Click the links to learn more about them and see what they do. For those new to the legislative process, even though the Montana Legislature meets every odd year for 90 days starting in January, their business is conducted over the “interim,” the time between Sessions, and thus the name of certain committees. These committees meet to follow up on certain bills, conduct studies to prepare for the upcoming Session, and monitor the performance of the Executive Branch. The two committees named above have their collective fingers in the natural resource pie. We will always remain interested in their activities and actions.

I’ll start with the WPIC.

Senate Joint Resolution 2, or SJ2, http://leg.mt.gov/bills/2015/billpdf/SJ0002.pdf was passed in the 2015 Session and required a detailed look at the pros and cons of the State of Montana assuming control of the US Army Corps of Engineer’s 404 permit. We refer to this as “state assumption.” The 404 permit is authorized under the Clean Water Act, and is sometimes called a dredge and fill permit. The WPIC discussed this study at their meeting, with presentations from Alaska and Oregon state governments and an EPA official from Washington, DC. The EPA official explained the mechanics of applying for state assumption, including filings and timelines. I took away a number of points from these three presenters:

  1. The process of Montana applying to assume the management of this permit is complicated and lengthy and would take a serious commitment of time and money from Montana.
  2. Oregon has been in the process of considering applying for 20 years. That’s not a typo. They have one employee working on it continuously. They figure they would need about 34 new employees to manage the program.
  3. In 2013 the State Legislature in Alaska authorized $1.5 million to begin the process of assumption. It appears that not enough progress was made over two years, so they discontinued funding.

The EPA and Oregon presentations were both in powerpoint. There is a good chance that they will be posted on the WPIC website in a few weeks if you are interested.

The Corps of Engineers, the federal agency that administers the 404 permit in conjunction with EPA, spends about $1.3 million annually in Montana to do so. According to WPIC staff, the Corps likely has additional staff in Omaha (their regional office) that assist. Currently, 10 Corps employees are in Montana working on this program.

Although the WPIC was focused on the value of local control, by the time they thought more about costs and saw what was involved, I suspect they will move into a slowdown mode. Considering that the new rules for the Clean Water Act, commonly called WOTUS (Waters of the United States), are tied up in court, it is not prudent to move forward with decisions or even much discussion until that dust settles. I visited with Attorney General Tim Fox in November about the lawsuits. He said that Montana would be testifying in front of the court in December, but he would not speculate as to when the court would act.

I heard many comments about the cost of Montana assuming the program.

The EPA representative stated that it was all or nothing regarding state assumption. The state has to take all the components of the 404 permit, except for navigable waters (sections or all of the Missouri, Yellowstone, and Kootenai rivers). However, she also said that Montana could look at entering into an agreement with the Corps of Engineers to manage the general permit program. The general permit program basically allows quick approval of routine actions along waterways. When a project qualifies under the general permit, the applicants avoid the costly and time consuming details needed with a full permit application. Certain members of WOTUS took an interest in this. WPIC has not delved into the details of this idea.

The committee chairman asked a representative of the US Army Corps of Engineers, who was at the meeting, if he thought that under the new WOTUS rules the workload of the Corps would increase, as they would be responsible for additional waters. Note that the threshold where the need for a 404 permit kicks in is higher than the threshold where a 310 permit kicks in, but I assume that the Corps would have to look at these  situations. EPA estimated that the workload for the Corps would increase percentagewise in the lower single digits under the proposed rule. Nonetheless, if the assumption moves forward, there would be some kind of changes to how we manage the 310 law.

The next step by WPIC is to convene a panel of state agencies with an interest in this idea. WPIC wants to know what they think, and will ask them if they are interested in taking on these responsibilities. In addition, stakeholders will be invited and contribute to those discussions. We will work with Laurie Zeller to make sure we have representation there. My thoughts are that we may want one or two Supervisors who deal with the 310 law on a frequent basis to also participate. Ground truthing is always of value. These meetings are available live on the internet, and Districts with a keen interest but no time to get here could access the live hearing and text me comments and points of concern.

In the meantime I’ll try to put together a survey to send to all 58 Districts to ask their opinions about this entire issue. As you know, Conservation Districts have been mentioned more than once as a possible entity to manage state assumption of the 404 permit program.

On to the EQC…

“In politics you never know anything.”  This was a quote from one of the EQC members, used in reference to new information that he had just heard about a particular issue. I have many thought about that quote, but I will save them for another time and another place.

The biggest issue for us at the EQC meeting centered around sage grouse – specifically, the new sage grouse program operated by the State of Montana through DNRC. Here are the key points in no particular order:

  1. The state program is up and running as of 31st December. Twenty-four development project proposals have been submitted through the website for review. Of those, 14 were outside of sage grouse designated areas and a review for sage grouse issues is not needed.
  2. DNRC is trying to figure out a way for an immediate automatic response for those type of non-pertinent proposals.
  3. DEQ expects small gravel pit operators to struggle with the new review system because they have not heard about it. DEQ has worked with industry groups to get the word out, and that 24 number mentioned above may be an indication of those communication efforts.
  4. There were many comments about fire and sage grouse, and how prepared we are to address this. One speaker suggested that fire be looked at as a natural occurrence when dealing with sage grouse conservation issues.
  5. MACD updated the Council about our sage grouse efforts, including a notice that we were trying to fill a vacancy in Glasgow.
  6. The first oil wells in Montana were drilled in the 1890’s. About 44,600 wells have been drilled in Montana. There are about 17,000 active wells in Montana. About 40% of those are in sage grouse country.
  1. Here is an article from my Twitter feed by the Bozeman Chronicle about the EQC and sage grouse:

Montana has approved a program to relocate dozens of sage grouse to help restore the struggling bird population in the Canadian province of Alberta. State Fish and Wildlife Commission chairman Dan Vermillion said Thursday that the program will help the recovery of the ground-dwelling bird on both sides of border. There was one dissenting vote over concerns that last year’s increase in the sage grouse population was an anomaly after years of decline. The commission authorized shipping 40 sage grouse hens to southern Alberta this year. The province has asked for a total of 120 birds by 2020, but state officials plan to review the effects of the program before any more relocations. Fish, Wildlife and Parks director Jeff Hagener says Alberta has an estimated 120 sage grouse left.  Several Montana lawmakers oppose the plan. The Environmental Quality Council on Thursday sent a letter to Montana Fish, Wildlife and Parks requesting a three-year block on moving any of the chicken-sized birds out of the country. Democratic Rep. Jim Keane of Butte says Fish, Wildlife and Parks should instead look to bolstering areas within the state where the bird is in decline. Last year, federal officials announced restrictions on 67 million acres of public lands to protect the bird’s habitat and prevent it from becoming an endangered species.

Here are several other issues that I heard about at this meeting:

  1. Arch Coal declared bankruptcy. They say that it will not have immediate impact on Montana.
  2. Many nuclear power plants on the East coast are nearing the end of their useful lives. No one knows what the next power source will be.
  3. A barrel of oil in North Dakota currently sells for about $23.
  4. Activity at the Montana Board of Oil and Gas is at it’s lowest level since 1919.
  5. There will be a court hearing in March about the voting procedure used at the 2015 Session to approve the CSKT water compact.
  6. US Army Corps of Engineers has $4 million for the NW states to address Aquatic Invasive Species (AIS). Montana should be able to tap into some of those dollars.
  7. 1/2 the power produced by Colstrip is sent to Washington state. We use the other half in Montana. Industries in Butte consume the majority of that power.

Upcoming SB 325 Meeting

Finally, I’d like to remind you about a Thursday 21st January meeting concerning a recently passed bill – SB 325. Basically, here’s the main question: How do we identify and separate anthropogenic and non-anthropogenic sources of a pollutant in a waterbody? I have also included a way for you to participate. I plan to participate and if you have ideas pls let me know.

Here is the agenda:

  • 1:40 Water quality standards 101
  • 1:55 Rulemaking 101
  • 2:10 Statute MCA 75-5-222
    • How might your/your affiliation’s interests be affected by this rulemaking?
  • 2:25 Non-anthropogenic condition discussion (MCA 75-5-222(1))
    • Definitions
    • How do we identify and separate anthropogenic and non-anthropogenic sources of a pollutant in a waterbody?
    • Examples of successful methods DEQ has used in the past
      • Modeling
      • Reference Stream Approach
      • Mass Balance Loading
  • 2:50 Variance discussion (MCA 75-5-222(2))
    • Scope and context of the rule
    • What is an appropriate determination of a discharge which would not “materially contribute” to a condition? (MCA 75-5-222(2)(a)(ii))
  • 3:15 Wrap-up
    • Function/organization of the workgroup
  • 3:30 Adjourn

Senate Bill 325 rulemaking workgroup meeting: The meeting will be held Thursday from 1:30 until 3:30 in room 111 of DEQ’s Metcalf building at 1520 East Sixth Avenue in Helena. If you are not available to be here in person but would like to participate, GoToMeeting and call-in information are below. If you haven’t already, please let me know if you’ll be able to make the meeting in person or call in.

  1. To join meeting: https://global.gotomeeting.com/join/643948133
  1. Join the conference call: pass code: 7508058 | Meeting ID: 643-948-133

As always, if you have ideas, concerns, comments, or questions, you can reach me via email or cell 406.465.8813.

Well, that’s about it. Enjoy the weekend!

Jeff

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