Water Policy Interim Committee Meeting
September 16, 2016
Report to the districts concerning the 29th and 30th August 2016 Water Policy Interim Committee Meeting in Helena, Montana
This report is a continuation of our communications with the Conservation Districts concerning what we believe is one of the most important committees of the Montana State Legislature. The Water Policy Interim Committee (WPIC) consists of 8 members – #4 from the Senate and 4 from the House, 4 Republicans and 4 Democrats. The leadership rotates between parties, but the chair and vice chair are always of different parties.
The agenda for this meeting had plenty of topics that concern Districts. You can see the agenda and the accompanying materials here: http://leg.mt.gov/css/Committees/Interim/2015-2016/Water-Policy/Meetings/Sept-2016/sept-2016.asp
I will summarize the relevant main topics that were covered, mention a number of issues that may be of interest to Districts, and add commentary at the end of this report.
Summary of the Water Reservation Reviews
If your District does not have a water reservation, and you wish to learn more about them before you read further, please see http://dnrc.mt.gov/divisions/cardd/conservation-districts/water-reservations. In my opinion, all 58 Conservation Districts need to understand the basics of this program. As Benjamin Franklin said, “We must, indeed, all hang together or, most assuredly, we shall all hang separately.”
Senate Bill 330 passed during the 2015 Session. See http://leg.mt.gov/bills/2015/billhtml/SB0330.htm. It required DNRC to report to the WPIC about water reservations by 1st July 2016. Specifically:
(10) (a) Except for a reservation provided in subsection (6) or a reservation provided in 85-20-1401, the department shall, at least once every 10 years, review existing state water reservations to ensure that the objectives of the reservations are being met.
(b) An existing state water reservation subject to the review in subsection (10)(a) that was not reviewed in the 10 years prior to [the effective date of this act] must be reviewed by July 1, 2016. The department shall provide the water policy interim committee, established in 5-5-231, a summary of the reviews before September 15, 2016.
The DNRC report may be seen here: DNRC Summary Report: SB330 Water Reservation Ten Year Review(complete report)
In a nutshell, DNRC reported that there are no major areas of concern across the state related to the municipal and Conservation District water reservations. However, there are issues forming in Bozeman, where the population growth and their demand for water is increasing. DNRC included “in stream flow” as part of this discussion, indicating that it was difficult to not include it when discussing water reservations. A committee member asked a hypothetical question related to the Bozeman issue: Could a municipality use eminent domain to take a water reservation owned by a Conservation District? Our legal counsel is looking into this question. This is an unfolding issue and one that we should monitor.
DNRC was criticized for not making recommendations in their report, but it appears that they were required to “…review existing state water reservations to ensure that the objectives of the reservations are being met.” The point centered on the “objectives,” and where they were and what did they require. It’s also interesting to note that a member of the audience made a comment asking that an environmental impact statement (EIS) be completed at some point in time concerning the water reservation program.
As noted on the cover of this report, Mr. Kevin Dawe testified for the Conservation Districts. He is well spoken, represented the Districts in a positive light, and addressed all angles of this issue. A summary of his presentation is part of this report but I’ll email it to you seperately. This seven-page document is a MUST READ if your District has a water reservation. Our thanks go to Duane Claypool, a CARDD DNRC employee located in Miles City, for all his research and reporting and investigation of this issue. Duane read all 269 pages of the DNRC report! Both Kevin and Duane did a stellar job for the Districts. Pat them on the back when you see them next.
MACD notes that we have received at least one resolution concerning our water reservations. We have to keep an eye on this issue and how it develops during the Session.
State Assumption of the Federal 404 Permit System
This is a rather complicated subject, but luckily (?) Districts have some to much familiarity with the 404 permit. I’ll try to label all the moving pieces as a background.
- The Clean Water Rule (CWR) is jointly administered by the EPA and the US Army Corps of Engineers.
- The CWR has been in existence for many decades.
- The US Supreme Court ruled a couple of times on the existing Clean Water Rule.
- Courts are supposed to make things clear, but they did not in these instances.
- The public complained quite often that the rule was confusing. Congress told EPA and the Corps to write a new rule.
- The new rule is called the CWR or sometimes the Waters of the United States (WOTUS). EPA tried to implement the new rule, but it was challenged in a number of courts and stopped until the court could review the case.
- Right now, in Montana and obviously the rest of the USA, we currently operate under the previous CWR until court action determines the future of the rule.
- Briefs are due in the court by February, 2017. The court may act quickly, or may not act quickly. No one knows. We do know, however, that the decision will be appealed by either side – those that say the new rule went too far, or those that say the new rule did not go far enough.
- Once the case gets to the US Supreme Court, we have no idea of how long it could take for a decision to emerge. I would guess sometime in 2018.
- There will be a new President selected in about 60 days and we do not know what the position of this new person will be.
- In the meantime, the EPA and the Corps formed an “Assumable Waters Subcommittee” to try and determine what waters could be assumed by the states, and those waters that should remain federal waters. There is some controversy on this subcommittee, but their final report is planned for early next year.
- In the meantime, the Montana State Legislature passed a study bill (SJ2) to look at assumption by the State of Montana. Of course, Conservation Districts are part of this study, and our name is mentioned quite often.
- The WPIC issued a report that included Conservation Districts as part of a possible future should the state assume the program. You were offered a chance to comment on it, and I sent you a copy of the letter I sent to the WPIC.
After much discussion over the two day WPIC meeting, and contrary to the public comment letters they received http://www.leg.mt.gov/content/Committees/Interim/2015-2016/Water-Policy/Meetings/Sept-2016/SJ2comments.pdf and oral testimony, WPIC decided to go with a revised option 5. At this point in time, the Districts are not in the draft language. Basically, the revised option 5 will be a contingent-focused bill, based on waiting for the courts to decide but asking DEQ to start preparing for assumption. I’m not sure of the final language, but it should be available in the next few weeks.
WPIC meets again on 12th October to finalize where they want to go. There will be a bill from the WPIC addressing this issue, and there may be two or three bills.
I have detailed notes about specific points raised concerning this issue, but this report is getting too long already. However, I must let you know that a state’s governor is required to send a letter to EPA requesting that his/her state assume the 404 program to get this process started. No one could say if Governor Bullock would be amenable to this idea.
Draft Bills Considered by the WPIC
WPIC considered quite a number of draft bills. I’m only going to address 4 of them here.
- LCwp08 is a draft bill that will give the Ground Water Investigation Program $250,000 annually from the General Fund. MACD supported this bill draft. It was approved by WPIC and will move forward as a committee bill.
- LCwp09 is a similar bill but it allocates a similar amount of funds for the Surface Water Assessment and Monitoring Program. MACD supported this bill draft, and it was approved by WPIC and will move forward as a committee bill.
- LCwp10 is a draft bill that creates a steering committee for the Surface Water Assessment and Monitoring Program. MACD supported this bill draft but objected to the exclusion of Conservation Districts from the steering committee. After a short discussion the WPIC agreed to add us in. It was approved by WPIC and will move forward as a committee bill.
- LCwp12 is a draft bill that would eliminate the Upper Clark Fork Basin Steering Committee and the Clark Fork River Basin Task Force and replace them with a newly established Clark Fork Basin Watershed Advisory Committee. MACD did not testify on this draft bill. There was much discussion and some confusion about this bill. It ended up with a motion to add in similar river councils or committees for the Yellowstone and Missouri and (perhaps – I’m not sure) the Milk River. This was very interesting to me, as the Missouri River and Yellowstone River councils that we manage were not mentioned. There is much to talk about with our river council members concerning this bill.
There was quite a surprise to me when I learned at this meeting that DNRC Water Resources had drafted and circulated a document that suggested much of the above (4). I’ve attached that document for your review. It’s titled a “Conceptual Draft of River Basin Council bill draft” and is seen below.
My comments are both speculative and frank. Don’t read them if you’re having a bad day.
First of all, my prediction about SJ2, the study of state assumption of the federal 404 permit program, failed to materialize. I had speculated that the budget situation for the State of Montana would be the dominate factor as the committee considered this issue, and that the WPIC would drop it. After listening to two full days of testimony, local control and the concern about the ramifications of the proposed clean water rule should it be accepted by the courts weighed more heavily on their minds. WPIC is charging forward. Whether Districts play a role in this has yet to be seen. I did note, however, that no District submitted a resolution concerning this issue.
I’d also like to address the rumor that MACD is pushing taking on the 404 permit program so we can somehow line our coffers. This is a totally untrue rumor that I hope ends now. Those of you who saw our letter to the WPIC concerning this issue will note that a number of Districts asked WPIC to drop this issue right now. In fact, the Missoula Conservation District said in a very clear manner that they are not interested in taking on this responsibility. They were very clear to me, and asked that I relay their position to WPIC. I did. I suspect there are other Districts that will take the same position. No District has communicated to me directly that they want the 404 permit program. Although a number of Supervisors have expressed interest. Most who responded said drop consideration or give us more information. MACD is not pushing the assumption of the 404 permit program.
There will be one or two or three bills at the 2017 Session concerning state assumption. If it is not addressed at Convention, I’d ask that you talk about it at a monthly meeting sometime soon if you have not done so already. I heard from about a dozen of the 58 Districts on this issue. Frankly, MACD does not have enough information from the Districts to be able to successfully navigate this issue during the Session. Right now our strategy would be delay, delay, delay.
On to another topic. My suspicion is that water reservations will be a topic of conversation at every Session for the next 20-30 years. If you agree with this, Conservation Districts need to do a bit of strategic planning very soon. Let us know if you want MACD to work with DNRC to get this started. My observation is that we had no long term strategy for the Coal Bed Methane program, and we watched in some agony as the Legislature slowly dismembered it over a number of Sessions. If we’re not at the table, we’re on the menu.
The bills to fund the Ground Water Investigation Program and the Surface Water Assessment and the Surface Water Assessment and Monitoring Program may or may not be supported by the Executive during the Session. They are what is called “cat and mouse” bills, and usually have a difficult time getting through the process. In addition, the bills specify that the funds be a “statutory appropriation,” meaning that the Legislature agrees to fund them year after year without having to go through the biennial budget process. Please keep in mind that future legislators may change the law, or as they say in Bermuda, “Parliament cannot bind the hands of future Parliaments.” MACD supported these bills because of our great interest in water and our working relationships with the Montana Bureau of Mines and Geology.
I’m planning to attend 4 of the Area Meetings later this month. If you have specific questions, corner me and I’ll try my best to answer your inquiries.
MACD Policy Director
Conceptual Draft of River Basin Council bill draft
85-1-203. State water plan. (1) The department shall gather from any source reliable information relating to Montana’s water resources and prepare from the information a continuing comprehensive inventory of the water resources of the state. In preparing this inventory, the department may:
(a) conduct studies;
(b) adopt studies made by other competent water resource groups, including federal, regional, state, or private agencies;
(c) perform research or employ other competent agencies to perform research on a contract basis; and
(d) hold public hearings in affected areas at which all interested parties must be given an opportunity to appear.
(2) The department shall formulate and adopt and amend, extend, or add to a comprehensive, coordinated multiple-use water resources plan known as the “state water plan”. The state water plan may be formulated and adopted in sections, with some of these sections corresponding with hydrologic divisions of the state. The state water plan must set out a progressive program for the conservation, development, utilization, and sustainability of the state’s water resources and propose the most effective means by which these water resources may be applied for the benefit of the people, with due consideration of alternative uses and combinations of uses.
(3) Sections of the state water plan must be completed for the Missouri, Yellowstone, and Clark Fork River basins, submitted to the 2015 legislature, and updated at least every 20 years. These basinwide plans must include:
(a) an inventory of consumptive and nonconsumptive uses associated with existing water rights;
(b) an estimate of the amount of surface and ground water needed to satisfy new future demands;
(c) analysis of the effects of frequent drought and of new or increased depletions on the availability of future water supplies;
(d) proposals for the best means, such as an evaluation of opportunities for storage of water by both private and public entities, to satisfy existing water rights and new water demands;
(e) possible sources of water to meet the needs of the state; and
(f) any legislation necessary to address water resource concerns in these basins.
(4) (a) The department may create River Basin Councils in the Yellowstone, Missouri, Clark Fork , Milk/St. Mary, and Kootenai River basins that are inclusive and representative of all water interests in those basins.
(b) The River Basin Councils consist of representatives nominated by existing watershed groups, and conservation district councils, as well as other water users within the basins.
(c) Each council may have up to 20 members.
(d) Each water user council shall make recommendations to the department on the basinwide plans required by subsection (3).
(5) River Basin Council members must be selected on the basis of their knowledge of water use, water management, agriculture, fish, wildlife, recreation, water quality, and water conservation.
(6) The goals of the River Basin Councils are to:
(a) provide a forum for all interests to communicate about water issues;
(b) provide education about water law and water management issues;
(c) identify short-term and long-term water management issues and problems and suggest alternatives for resolving them;
(d) assist in facilitating the resolution of water-related disputes;
(e) provide coordination with other basin management and planning efforts;
(f) advise government agencies about water management and permitting activities;
(g) consult with local and tribal governments within the basin;
(7) Before adopting the state water plan or any section of the plan, the department shall hold public hearings in the state or in an area of the state encompassed by a section of the plan if adoption of a section is proposed. Notice of the hearing or hearings must be published for 2 consecutive weeks in a newspaper of general county circulation in each county encompassed by the proposed plan or section of the plan at least 30 days prior to the hearing.
(8) The department shall submit to the water policy committee established in 5-5-231 and to the legislature at the beginning of each regular session the state water plan or any section of the plan or amendments, additions, or revisions to the plan that the department has formulated and adopted.
(9) The legislature, by joint resolution, may revise the state water plan.
(10) The department shall prepare a continuing inventory of the ground water resources of the state. The ground water inventory must be included in the comprehensive water resources inventory described in subsection (1) but must be a separate component of the inventory.
(11) The department shall publish the comprehensive inventory, the state water plan, the ground water inventory, or any part of each, and the department may assess and collect a reasonable charge for these publications.
(12) In developing and revising the state water plan as provided in this section, the department shall consult with the water policy committee established in 5-5-231 and solicit the advice of the water policy committee in carrying out its duties under this section.
NEW SECTION. Repealer.
85-2-338. Upper Clark Fork River basin steering committee —
membership and duties — comprehensive management plan.
85-2-350. Clark Fork River basin task force — duties — water