News From the Front February 10
February 10, 2017
“I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend.” Thomas Jefferson
The week according to Jeff…
Dear Readers:
President Jefferson gave a number of medals (pictures seen above) to Lewis and Clark as symbols of friendship for their use along the journey out West. According to Wikipedia, “The U.S. mint prepared special silver medals with a portrait of Jefferson and had a message of friendship and peace, called Indian Peace Medals or peace medals. The soldiers were to distribute them to the nations they met.”
Total number of Introduced Bills – 717
Total number of Introduced and Unintroduced Bills – 2575
Those numbers are as of Thursday.
There are lots of new bills and changes for many of the ones seen below.
The details in this edition of NFTF begins with a report about the events occurring on late Thursday afternoon, 2nd February, on the floor of the Senate. The short debate was about SB 48. This bill had been amended and passed on a 9-2 vote out of the Senate Natural Resources Committee. The Senate debated the bill, if one could call it that, with the sponsor of the bill opening the debate, a comment from another Senator who opposed the bill, followed by the closing by the sponsor. It was very short. The bill passed 29-20, but not strictly along party lines. It was referred to Senate Finance and Claims Committee for their consideration on 9th February. Note that the original fiscal note projected the cost to be $1.6 million per year. The revised fiscal note presented to the committee was $0. The committee took no action.
This bill directs DEQ to assume the 404 dredge-and-fill permitting program. Conservation Districts are still not mentioned in this bill. MACD has no position on this bill but is monitoring.
My opinion: Should this bill pass, the amendments effectively postponed any action until July of 2019. What I’m hearing is that the Waters of the US rule will be negated in some manner by the new federal Administration. However, Congress has asked that the rule be clarified because there are contradictory rulings from the US Supreme Court about it. The rule will be revised. By 2019 I suspect that EPA will have another draft rule our for consideration. It’ll be something different from what we see today. If the Trump Administration in general passes responsibilities onto the states for several current federal functions, as some have suggested, Conservation Districts have to be at the table for any state discussions for any issues that would impact us. However, please remember these thoughts about predictions: Those who have knowledge, don’t predict. Those who predict, don’t have knowledge. Lao Tzu
For more information related to this bill (it was drafted because of the projected/suspected impacts of the draft WOTUS rule), see the Waters of the United States (WOTUS) article below.
HB 344 is the identification number for the bill that would provide funding for the Coal Bed Methane Program over the next biennium, entitled: Revise funding for coal bed methane protection program. This bill is in direct response to the MACD resolution of the same topic. It was heard in front of the House Natural Resources Committee on Monday, 6th January. The Coal Bed Methane Protection Committee sent Don Sasse to testify on their behalf. MACD testified in support of this bill. DNRC testified as an informational witness, no doubt because the funds requested in the bill are not in the Governor’s budget. There were many questions from the committee about the program. There were no opponents, but there were a few negative comments from members of the audience afterwards about our testimony. The committee took no action.
Executive action for HB 14, HB 6 (RRG planning grants, watershed grants, and other funding), and HB 7 (RDG planning grants and AIS funding), occurred on 9th of February. HBs 6&7 passed without amendments. HB 14 was amended, approved with one nay vote, but still has funds for five Conservation Districts(Sweet Grass, Beaverhead, Stillwater, Broadwater, and Pondera). The journey is a bit shorter to full approval, but getting these out of committee is a major step in the right direction. Note that the conflict between bonding to pay for projects and paying cash for projects is still front and center at the Legislature. That storm is still brewing and will have to be navigated to be successful.
HB 337 is a bill that would require DNRC to prepare a report in 2026 about water reservations. As you know, Conservation Districts have a number of water reservations* for both the Yellowstone and Missouri rivers. This report was prepared in 2016 by DNRC, and some of you will remember a bit of controversy that accompanied the report. Many of us will not be here for the 2026 report, but for those who plan to be please mark your calendars. Here is the meat of the requirement: “…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.” May I humbly suggest that every Conservation District with a water reservation include this as a meeting topic on an annual basis? Maybe the January meeting? This bill passed out of the House Natural Resources Committee on a 15-0 vote. There will be a floor debate on 10th February and reported in the next edition of NFTF. We predict it will be passed by both houses and be signed by the governor.
HB 424 recognizes source watersheds and makes them eligible for the RENEWABLE RESOURCE GRANT AND LOAN PROGRAM. It gives priority to source watersheds (as well as a few other criteria) for funding. Source watershed are not defined in Title 85 or in any other part of the MCA. MACD currently has no position on this bill.
SR 20 is the bill to confirm John Tubbs as the Director of DNRC. MACD will be present to support Mr. Tubbs. The hearing is scheduled for 20th February.
SR 21 is the bill to confirm Tom Livers as the Director of DEQ. MACD will be present to support Mr. Livers. No date for this hearing has been set. We suspect that a number of weeks will pass before the date is set.
We do not know dates nor bills available for the directors of Fish, Wildlife and Parks or the Department of Agriculture. MACD has intentions to be at these hearings but we are still searching for background information about these two individuals. We were told that these hearings will be near the end of the Session.
HB 53 previously passed the House floor on a 100-0 vote, and was referred to the Senate Natural Resources Committee. They held a hearing on 6th February and MACD and DNRC testified in support of the bill. There were no opponents and no questions from the committee. This is a clean up bill proposed by DNRC. It is “AN ACT CLARIFYING THE PROCEDURE FOR CALCULATING LEVIES FOR CONSERVATION DISTRICTS.” This bill is expected to pass both houses and be signed by the governor.
HB 83 passed out of the (H) State Administration Committee, and cleared the floor of the House easily on a 71-25 vote. This is a clean up bill needed to address mistakes made in the 2015 Session’s giant election law revision that included Supervisor election changes. A hearing was held on Monday 30th January in (S) State Administration. MACD supported this bill. There were no opponents. The committee took no action. This bill is expected to pass both houses and be signed by the governor.
SB 39 is a cleanup bill: “AN ACT ELIMINATING NOTICE TO AND APPROVAL OF COUNTY COMMISSIONERS OF CONSERVATION DISTRICT ORGANIZATION” This bill flew through the Senate on a 50-0 vote and moved into the House and heard in front of the House Local Government Committee on 7th February. MACD and DNRC and the Montana Association of Counties supported this bill and there were no opponents. The committee took no action. This bill is expected to pass both houses and be signed by the Governor.
HB 305 revises the laws related to county bounties on predators. Basically, it gives the board of county commissioners authority to determine the dollar amount of the bounty to be paid on each predatory animal, and allows the board of county commissioners to appoint bounty inspectors in addition to those provided for in 81-7-112. The bill also eliminates an older statute that placed a $100 bounty on wolves. The House Agriculture Committee hearing was on 31st January, but MACD was unable to attend. The bill passed out of committee on an 18-5 vote and passed 74-16 on the floor of the House. This bill will now move to the Senate Agriculture Committee for consideration. I’ve included this bill in our list, as several Conservation Districts in past years have expressed interest in predators and bounties across Montana.
HJ 4 was heard in front of the House Taxation Committee. This bill would require a study of the Coal Tax Trust over the interim. As you know, Conservation Districts receive funds from this account, and will want to be part of discussions if there is a study. MACD did not testify in the House but will monitor this bill to see how it progresses. On 31st January HJ4 passed out of committee on a 19-1 vote. MACD heard the 8th February debate on the floor of the House. There are concerns about the number of needs across the state and the funding currently in the Trust. The bill wants to look at ways to grow the principle in the Trust. The sponsor made a case for being thoughtful about the future of this beneficial program, and gave praise to the people who set up the Trust. Opponents said the bill opens the door to busting the Trust. The bill failed 46 yes and 54 no. The vote was not along party lines.
There has been no action regarding SB 98, previously heard in front of the (S) Judiciary Committee. This bill establishes the Montana property fairness act. Immunities or liability waivers in Conservation District laws could be impacted by this bill, and there are concerns about impacts to the 310 law. There were three proponents and eight opponents for this bill. MACD will monitor this bill, and continue to try to analyze if and how it might impact Conservation Districts. Note that this bill has a $600 million fiscal note that was contested by the sponsor.
HB 104 passed on the floor of the House 88-12 and was re-referred to the full House Appropriations Committee for a hearing. This bill was sent to Approps because it asks for money, and all those types of bills have to go through this funnel. This bill is “AN ACT CREATING THE GROUND WATER INVESTIGATION PROGRAM SPECIAL REVENUE ACCOUNT; PROVIDING A STATUTORY APPROPRIATION.” Jane Holzer is the Conservation District representative for this program. MACD President Jeff Wivholm was in town for the Meet and Greet and spoke in favor of this bill. There were no opponents. The House Appropriations Committee heard this bill and subsequently tabled it on 30th January. MACD heard that it is being held until the new revenue estimates arrive and/or if there are any revenues left to include in this program.
HB 107 passed on the floor of the House 84-16 and was re-referred to the full House Appropriations Committee for a hearing. This bill was sent to Approps because it asks for money, and all those types of bills have to go through this funnel. This bill is “AN ACT CREATING A SURFACE WATER ASSESSMENT AND MONITORING PROGRAM; PROVIDING FOR A SURFACE WATER ASSESSMENT AND MONITORING PROGRAM SPECIAL REVENUE ACCOUNT; PROVIDING PROGRAM DUTIES; PROVIDING A STATUTORY APPROPRIATION.” MACD lobbied successfully earlier this year at the interim committee meetings to include a Conservation District representative on the steering committee of this program. If this bill passes, Conservation Districts will be asked to participate on the steering committee, and it’s not too early to start thinking about a name. MACD President Jeff Wivholm was in town for the Meet and Greet and spoke in favor of HB 107. There were no opponents. UPDATE: The House Appropriations Committee heard this bill and subsequently tabled it on 30th January. MACD heard that it is being held until the new revenue estimates arrive and/or if there are any revenues left to include in this program.
HB 360 is a new bill to establish a surface water assessment and watering program. HB 107 slipped on the ice and was injured (see above), and HB 360 was introduced to try and allow the idea to move forward. However, there are no funds in this bill, and the program would have to be supported with existing dollars. MACD testified in favor of HB 107, and we testified in support of HB 360. There were many supporters and no opponents. The committee asked several incisive questions, including a request for estimated costs to run the program as proposed under this bill.
SB 93 was initially heard in front of the (S) Energy and Telecommunications Committee. This bill provides for notification at certain dwellings for oil and gas operations. I believe it was in 2015 that the Conservation Districts passed a resolution pertaining to notification issues. Although this is a bit different from the resolution, it pertains to notification issues and may be of interest to a number of Conservation Districts. MACD did not attend this hearing. This bill was amended by the committee and passed on a 8-5 vote. The bill was debated on the floor of the House on 6th February and passed on a vote of 32-18. It’ll now move on to the Senate for consideration.
HB 281 is listed as “probably dead.” This bill would have impacted pipeline stream crossings and was titled “Locate certain utilities over water.” It is not known how this bill could have impacted Conservation Districts. This bill was scheduled for a hearing on Wednesday 25th January, but the sponsor withdrew the bill. I’ll keep it on this list until it is officially dead.
HB 228, a bill to provide funding for sage grouse stewardship, was heard in front of the House Natural Resources Committee. The bill passed out of committee on a 13-2 vote, and will be debated on the floor soon. This bill would allow the unspent funds authorized at the 2015 Session for sage grouse to be carried forward for the next several years. MACD supported this program at the 2015 Session, and will continue to do so. There were many supporters and no opponents.
SB 162 is a bill to establish a regional infrastructure approach. It names Conservation Districts as an entity eligible for funds. The eligible projects include: “Infrastructure projects” means: (a) drinking water systems; (b) wastewater treatment facilities; (c) sanitary sewer or storm sewer systems; (d) solid waste disposal and separation systems, including site acquisition, preparation, and monitoring; (e) local roads; (f) bridges; or (g) buildings, equipment, and other facilities. The Department of Commerce would administer these funds. Although we do not regularly delve into these areas, there may be occasion where a District could be involved. This is not the flagship bill sponsored by the Montana Infrastructure Coalition.
HB 282 is “AN ACT CREATING A PROCESS FOR A COUNTY COMMISSION TO RESTORE THE TYPE OF ELECTION HELD BY A COUNTY IF AN ELECTION WAS HELD TO CHANGE THE TYPE OF ELECTION WITHOUT HAVING HELD AN ELECTION TO CHANGE THE FORM OF GOVERNMENT…” It appears that this bill does not impact Conservation Districts, but we are looking into it. I had to put it here because the title is very interesting.
HB 420 is a bill to revise the allocation of oil and gas revenue for oil and gas impact projects.
There may be impacts to Conservation Districts and MACD is looking into it.
HB 370 appears to impact Conservation Districts. It is AN ACT PROHIBITING ANY PERSON FROM BEING EXCLUDED FROM AN OPEN MEETING; ALLOWING RECORDINGS OF PUBLIC MEETINGS BY ANY PERSON. Here is the complete text: “2-3-211. Recording. Accredited press representatives A person may not be excluded from any open meeting under this part and may not be prohibited from taking photographs photographing, televising, transmitting images or audio by electronic or digital means, or recording such open meetings. The presiding officer may assure ensure that such these activities do not interfere with the conduct of the meeting.” Conservation Districts host hundreds and hundreds of public meetings each year. If this bill passes District Administrators will need to be aware of these requirements. MACD will keep monitoring and informing you of any progress/changes.
Remember that you are able to watch or listen to any hearing from your computer, either live hearings or hearings held days ago. Scroll through the Video and Audio – Session section at this link: http://leg.mt.gov/css/default.asp to find the appropriate committee.
IF YOU’D LIKE US TO TRACK A BILL THAT INTERESTS YOUR CONSERVATION DISTRICT, PLEASE SEND ME A NOTE AND I WILL INCLUDE IT IN THE NEXT EDITION. jtiberi@macdnet.org
In other news…
Montanans are waiting for news about Congressman Ryan Zinke‘s confirmation. It seems that Education secretary nominee Betsy DeVos and Sen. Jeff Sessions, R-Ala., President Trump’s attorney general pick, are in line for a Senate vote, before a vote will be held for Congressman Zinke. Both DeVos and Sessions nominations are high profile and it seems that there is much behind the scenes activity going on. Now that these nominations have closed, others in line will move forward. The rest of the approvals are scheduled to happen by the end of this week, as the Senate has been asked to work on Saturday. I presume this includes Representative Zinke for Secretary of the Interior and George Ervin “Sonny” Perdue III for Secretary of Agriculture. Maybe by the time you read this it’ll be settled. There are many groups that wish to travel to DC to visit with Representative-turned-Secretary Zinke, but they’ve been told to hold their horses for 3-4 months until he gets his bearings and the dust settles.
There is no news as to who will be the new NRCS Chief. Leonard Jordan, who has a 37 year career with NRCS, is the Acting Chief. Those who have met Mr. Jordan know that NRCS is in good hands.
News from The Update http://www.ae2s.com/newsletter/TheUpdate/Update2017/February/WOTUS.html
Supreme Court to Review WOTUS Rule
The Supreme Court will consider whether federal district or appellate courts have jurisdiction to hear the lawsuit over the controversial Waters of the United States (WOTUS) Rule. Many of the parties who are challenging the WOTUS Rule have filed suits in circuit and district courts due to uncertainty whether key provisions of the Clean Water Act (CWA) apply to the WOTUS Rule. The suits filed in seven circuit courts were consolidated in the Sixth Circuit U.S. Court of Appeals, while more than a dozen district court challenges proceeded separately.
The WOTUS Rule was proposed by the U.S. Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (USACE) as part of the Clean Water Rule under the CWA, with the goal of clarifying the agencies’ authority over various bodies of water. The WOTUS Rule broadened federal oversight beyond “navigable waters” to include upstream waters, as well as intermittent streams and prairie potholes.
Critics of the Clean Water Rule say it is contrary to the Congressional intent of the CWA, and it infringes on the ability of the States to regulate their own natural resources. USEPA has repeatedly said the Clean Water Rule only applies to the types of waters that have historically been covered under the CWA, which does not include most ditches, groundwater, shallow subsurface flows, or tile drains.
My opinion: The courts are wasting their time and our taxes on this, as the new Administration will somehow withdraw the rule and start over. Those who have knowledge, don’t predict. Those who predict, don’t have knowledge. Lao Tzu
On 10th February I officially ended my appointment on EPA’s Local Government Advisory Committee. I served on the LGAC for nearly seven years, representing the 3,000 Conservation Districts across the country. The committee met by conference call once or twice or thrice per month, sometimes in person, reviewing many policies, programs and procedures that EPA wanted to enact. We commented every time, and our work products may be seen at https://www.epa.gov/ocir/local-government-advisory-committee-lgac I did not always get everything that I wanted, but I made sure that EPA staff and other committee members knew about Conservation Districts, what we offered to our country, and what we needed from them. We met with both of the last two EPA Administrators (Lisa Jackson and Gina McCarthy) numerous times to explain our reasoning and ideas for helping to make the actions EPA was contemplating take into account local government concerns. As I look back at my time with them, I believe the committee provided EPA a reality check for on the ground issues. It was of great interest to me to see in detail how a federal agency operates in the District of Columbia, the intricacies of the mission of EPA, and how they fit into the larger world of natural resource management, a place where Conservation Districts have lived for almost 80 years.
What to watch next week and beyond…
On Monday, 13th February the (J) Natural Resources and Transportation Committee will have a work session about AIS (Aquatic Invasive Species). That’s the date that the Executive releases their plan for dealing with AIS. There are many balls in the air during this Session about the best way to go after AIS, and the discussion is continuing in the hallways and in meetings about how Montana is going to proceed. This is a major statewide undertaking with serious consequences. Lots of coordination is needed. Conservation Districts are mentioned as part of the solution. We don’t know exactly what that will look like right now. One hint may be the email request that DNRC sent to Conservation Districts about possible roles, and your response to DNRC.
Executive action for HB2’s portion of DNRC’s operating budget is scheduled for Thursday, 16th February. MACD plans to attend, but the audience is not allowed to participate in the committee discussions unless asked by a member of the committee. That is most often a rare occurrence.
The pace of hearings will pick up steam again next week. Several have been scheduled, but there will be more as the days pass.
I am sure that there’ll be some more votes on bills that have already been through the hearing process. This is called “Executive Action,” and the fate of many bills depends on a positive vote. Look for any bills that get out of committees and contain expenditures to be held in the full Appropriations Committee until finances are more clear to the Legislature.
We’ve got our eyes on it…
If you wish to see our most current list of bills that we are monitoring, we’ve set up an account that will allow easy access to any of the bills we are tracking. There are more than 90 bills on this list. Go to this link:
Preference Account Login (login to an already established preference account)
Our User Name is MACD2017 and our Password is Conservation17
Once you get there, click on MACD Tracker to see the list. Comments and ideas are welcome.
The details in that list change everyday.
Here are a few unintroduced bills that I highlighted, as they may be of interest to Conservation Districts. If details are available, you may find them with the MACD Tracker. The ones in red relate to a current or former MACD resolution. I’ve eliminated several of the bills, as there has been no action for weeks, and you may find them on the MACD Tracker.
LC006 – is a bill to revise laws related to closure of certain coal-fired generation. This bill may generate funds for the State of Montana. Some of the funds could be appropriated to Conservation Districts to carry out our responsibilities. There is no text available for this bill at this time, nor do we know when it will be introduced. Keep your eyes on this one.
LC736 – Generally revise laws related to infrastructure funding programs. We do not yet know what will be in this bill. However, there is a MACD resolution about infrastructure and this may be one to keep our eyes on. Currently this bill is on hold.
LC1160 – Generally revise floodplain laws. This bill is a direct result of the MACD Resolution of the same topic. This draft is on hold but is expected to move into the stream soon. MACD is having continuous meetings with the sponsor, DNRC, and several Conservation District Supervisors about this bill.
NOTE: LC1663 is another bill to revise floodplain laws, also, but this draft request is on hold.
LC1524 – A resolution supporting lower Yellowstone River fish bypass, was taken off hold by the sponsor on 8th February. That means it’ll start moving through the process. The wording of the bill is unknown at this time, but the sponsor is a former Conservation District Supervisor.
LC1916- Revise funding for Growth Through Agriculture. Conservation Districts share a funding source with this program. If it’s changed, does it impact us? We have to keep watching. This bill is currently being drafted.
LC2250- Enact protections for Yellowstone River. MACD sent a separate note to the two river councils to ask for their help in monitoring this bill. We also visited with the sponsor at the Meet and Greet and were told that this bill has to do with implementing recommendations presented to the governor concerning the 1990’s Yellowstone River flood report.
LC2323- Provide funding for the St. Mary irrigation rehabilitation project. This bill could be related to the MACD infrastructure bill that passed in 2016. This bill is being drafted.
You can look at each of these bills to see details on the MACD Tracker.
IF YOU’D LIKE US TO TRACK A BILL THAT INTERESTS YOUR CONSERVATION DISTRICT, PLEASE SEND ME A NOTE AND I WILL INCLUDE IT IN THE NEXT EDITION. jtiberi@macdnet.org
Remember that you are able to watch or listen to any hearing from your computer. Scroll through the Video and Audio – Session section at this link: http://leg.mt.gov/css/default.asp to find the appropriate committee.
Lend us a hand…
Talk to Legislators anytime you get a chance. Your local contact makes a great difference in the Capitol.
Thanks to all of you who are reading this report. Contact me with comments or questions jtiberi@macdnet.org or 406.465.8813. We appreciate your support in this endeavor, and for helping to keep Montana.
Jeff
*In 1978, the Board of Natural Resources and Conservation granted water reservations to 14 conservation districts (CDs) in the Yellowstone River basin. Ten CDs were granted reservations in the upper Missouri River basin in 1992, and eleven CDs were given reservations in the lower and Little Missouri River basins in 1994. Some CDs have reservations in more than one basin. The Conservation Districts Bureau provides legal, technical, and programmatic assistance to conservation districts in administering water reservations.
At the end of the 2014 irrigation season, there were a total of 220 CD water reservation projects in the Yellowstone River basin. These projects put to use 99,438 acre-feet of water.
Conservation Districts have issued 82 reserved water use authorizations in the Missouri River basin, developing 29,246 acre-feet of water.