October 12 WPIC Meeting
October 17, 2016
REPORT TO THE DISTRICTS concerning the 12th October 2016 WATER POLICY INTERIM COMMITTEE MEETING in Helena, Montana; and containing other news of interest to Conservation Districts.
This report is mostly 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–go here for related info) 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. This was their last meeting before the 2017 Session.
The agenda for this meeting had plenty of topics that concern Districts. You can see the agenda here: http://leg.mt.gov/content/Committees/Interim/2015-2016/Water-Policy/Meetings/Oct-2016/Draft_agenda-October2016.pdf
Here are links to the materials that were presented at the meeting, including draft bills.
- Staff memo to committee
- Draft legislation:
- Limit adverse effects analysis (LCwp4b)
- Establish Surface Water Assessment and Monitoring Program (LCwp82)
- Allow Water Court review of certain DNRC decisions (LCwp06)
- Authorize DEQ assumption of dredge and fill permitting (LCwp81)
- Modify permit exemptions for certain ground water appropriations (LCwp7b)
- Expand duties of river basin councils
- Montana Supreme Court ruling in Clark Fork Coalition v. Montana Well Drillers
I will send you the official minutes of this meeting once they are published.
I will mention a number of issues that will be of interest to Districts, and add other information at the end of this report.
A draft bill to establish SWAMP…
This bill establishes the Surface Water Assessment and Monitoring Program (SWAMP) within the Montana Bureau of Mines and Geology and provides a $250,000 annual statutory appropriation. The bill also establishes program duties and a steering committee. This bill is a combination of LCwp09 and LCwp10 from the August meeting.
MACD supported this bill, and Conservation Districts are part of the Steering Committee that will oversee the program and to some extent the funding. This bill passed and will be debated at the Session as a Committee Bill. Committee Bills usually carry more weight than other bills during the Session. Note that having a statutory appropriation is a coup for any state executive branch agency, as the funds are automatically placed into your account each Session. Statutory appropriations are reviewed every 8 years or so to see if they still are appropriate.
A draft bill concerning the 404 permit…
This bill was amended to “direct,” not “authorize” (as seen in the draft) DEQ to be the lead in the assumption of dredge and fill permitting. As directed by the WPIC, this draft directs the department to “take all actions necessary” to gain federal permission to assume the federal Section 404 permitting program, also known as “dredge and fill” permits. This bill was also amended to allow DEQ to wait until there is a final decision on Waters of the United States, or WOTUS, before acting. This pushes any action concerning WOTUS to at least 12 months down the road, or perhaps as many as 18 months, since it likely will be headed to the US Supreme Court.
Note that there is no mention of Conservation Districts in this bill. However, there is no doubt in my mind that DEQ would have conversations with us if this bill passes come January. We suspect that DEQ will oppose this bill, or at the very least ask for an appropriation to be able to staff this requirement.
AS A WOTUS BACKGROUND, I HAVE INCLUDED THE FOLLOWING POINTS FROM MY LAST REPORT:
State Assumption of the Federal 404 Permit System
This is a rather complicated subject, but Districts have some to much familiarity with the 404 permit. I’ll try to label all the moving pieces as a background.
1. The Clean Water Rule (CWR) is jointly administered by the EPA and the US Army Corps of Engineers.
2. The CWR has been in existence for many decades.
3. The US Supreme Court ruled a couple of times on the existing Clean Water Rule.
4. Courts are supposed to make things clear, but they did not in these instances.
5. The public complained quite often that the rule was confusing. Congress told EPA and the Corps to write a new rule.
6. 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.
7. 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.
8. Briefs are due in the court by February, 2017. The court may act quickly, or may notact 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.
9. 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.
10. There will be a new President selected and we do not know what the position of this new person will be.
11. 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.
12. 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.
13. 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 we sent to the WPIC.
Two draft bills establishing river councils…
These bills would authorize and expand duties of river basin councils. The WPIC discussed a bill combining two Clark Fork River watershed groups in August and subsequently requested a bill draft eliminating those groups while formalizing basin advisory councils across Montana. The two drafts differ in how the basin councils are appointed: The DNRC would appoint members in LCwp83, and conservation district supervisors would appoint members in LCwp93.
MACD testified (complained) that the idea behind these bills had morphed from simply eliminating the Task Force and the Steering Committee for the Clark Fork, to include authorizing river councils. Districts had not had time to consider the ramifications. Obviously we were quite concerned about the potential impact on the two river councils that we have in place, and how this would impact them.
There was lots of testimony about these bills, mostly in support of establishing river councils, but also asking for another chance to make the existing entities work. Granite Conservation District Board Chairman Jim Dinsmore testified that they had accomplished much work on the Task Force, but requested more time to get back into functioning at a higher level.
Both of these bills died in the committee. However, a statement was made by a Legislator that they may arise again during the Session. We will be watching.
Other News…
On Friday 14th October in Butte there was a meeting concerning your floodplain resolution from 2015 (Resolution 15-1). We met with both federal and state legislative branches to try and get some motion on the concerns expressed. We are pleased to report that we have a member of the Montana State Legislature willing and eager to sponsor a bill that would provide exceptions similar to those requested in the resolution. Supervisor Jeff Ryan agreed to continue to work with MACD to make progress on this issue. Jeff Ryan and Ted Dodge are thanked for aggressively chasing this issue.
Commentary…
This was a good week in Helena for Conservation Districts.
1. The 404 assumption study will continue with us being on the sidelines and ready to act in one way or the other.
2. The river council idea seemingly has been put on the back shelf. One does not know for how long, however.
3. The Task Force and the Steering Committee authorized in MCA (Montana’s law books) may have continuing life if they can increase their functionality. Conservation Districts have their fingers in both of those Columbia River Basin pies.
4. We will have a draft bill addressing floodplain issues ready for the Session.
Respectfully submitted,
Jeffrey Tiberi
MACD Policy Director