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Environmental

Montana Submits Comments on EPA’s Sweeping ‘Waters of the U.S.’ Proposal

House Speaker, agricultural community, counties, homebuilders voice opposition to proposal

Earlier this month, the Montana Attorney General’s Office submitted comments to the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers regarding proposed rules that would dramatically expand their regulatory authority over all waters in any way connected to navigable waters.

“The referenced rule-making proposal exceeds your agencies’ rule-making authority, with the effect of impinging improperly on our State’s sovereignty,” Attorney General Fox told EPA Administrator Gina McCarthy and Army Secretary John McHugh.

The Clean Water Act, [enhanced version available to lexis.com subscribers], passed by Congress and enacted in 1972, established a system of cooperative federalism that preserved state authority over land and water uses, but prohibited certain types of discharges into navigable waters. In 2007, Congress rejected the very expansion that the EPA and Corps are attempting to seize via rule-making now. “The fact Congress was unwilling to adopt this expression of intent indicates clearly the Clean Water Act is limited in its jurisdictional reach and that your agencies’ proposal is beyond what is authorized by that Act,” Fox told the EPA and Corps. “It violates, in my opinion, the admonitions of the U.S. Supreme Court that the Act’s jurisdiction is and must be limited to waters that have a significant nexus to core waters. In short, the proposal seeks to extend the reach of the Act beyond what is allowed by the Commerce Clause of the U.S. Constitution.”

“Through our state constitution, our 1971 Water Quality Control Act, and subsequent legislation, Montana has established strong water protections tailored to the unique needs of our communities,” Fox said. “The EPA’s latest attempt at a power-grab is not only unnecessary and quite possibly unconstitutional, but also detrimental to how our agricultural community works with the land, and how our local governments build and maintain the vital infrastructure upon which we all rely every day.”

State leaders and groups weighed in supporting the state’s comments.

“We don’t need the heavy hand of the EPA reaching far beyond its authority to impose unnecessary, one-size-fits-all regulations on our communities,” said House Speaker Austin Knudsen (R-Culbertson). “These job-killing rules from Washington, DC, are the very policies voters rejected this past election.”

“The comments submitted by Attorney General Fox on behalf of Montana clearly illustrate the problems with the EPA’s proposed rule,” said Nicole Griffin Rolf of the Montana Farm Bureau Federation. “If made permanent, this broad, overreaching rule will have serious adverse effects on farmers and ranchers. The Montana Farm Bureau Federation sincerely appreciates that he recognizes these problems and submitted comments expressing concerns.”

“Montana’s ranchers greatly appreciate the support of Attorney General Fox for providing comprehensive comments, highlighting the negative impacts the proposed rule will have on Montana agriculture,” says Errol Rice, Executive Vice President of the Montana Stockgrowers Association. “As agriculture producers who continually work to maintain and conserve clean water for our environment, wildlife and neighboring communities, it is encouraging to have the support of our state leadership to address increasing regulation from federal agencies.”

“The Montana Association of Counties is pleased that Attorney General Fox is standing with Montana’s counties in objecting to the draft rules proposed by the Environment Protection Agency,” MACO Executive Director Harold Blattie said. “The proposed rules are far overreaching and would create an undue burden, if not completely stymie conducting ordinary county road maintenance.”

“These new definitions not only muddy the waters for every property owner in Montana, but the officials charged with enforcing them,” said Montana Building Industry Association Executive Director Dustin Stewart. “It’s a bad legal precedent, and it’s bad for business in our state. As home builders, we appreciate Attorney General Fox’s comments on behalf of home buyers, who will see their choices limited and their costs go up if these new regulations are put in place.”

Montana’s concerns echo comments submitted separately by the attorneys general of West Virginia, Nebraska, Oklahoma, Alabama, Alaska, Georgia, Kansas, Louisiana, North Dakota, South Carolina and South Dakota, as well as the governors of Iowa, Kansas, Mississippi, Nebraska, North Carolina and South Carolina.

The EPA and Corps proposed the new regulations on March 25. The deadline for submitting public comments was November 14.

The Attorney General’s Office is also in the process of reviewing broad carbon emission regulations proposed by the EPA earlier this year.

Resources:
Montana’s comments on proposed “Waters of the U.S.” regulations
The proposed regulation as published in the Federal Register, [enhanced version available to lexis.com subscribers]
EPA and Corps’ proposed definition of “Waters of the U.S.”
U.S. Supreme Court Justice Kennedy’s concurring opinion in Rapanos v. U.S., [enhanced version available to lexis.com subscribers]

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