Montana’s Waters and The Clean Water Restoration Act
Posted on: June 14, 2008
I came across a blog posting of Roy Brown’s editorial Montana Waters in Jeopardy. The blog, Montana Headlines, linked to a follow-up done by another blog, Montana Misanthrope.
In the editorial, Roy Brown writes, “In case you haven’t followed this underreported story, some members of Congress, and even some folks in Helena, want to take away our ability to manage our own water in Montana and across the country.” This bill, he argues, will “drastically expand the power of the federal government” and “threatens” Montanans with “increased burden.”
He charges the governor with, “tak[ing] the side of extreme environmental groups who contend that the federal government should apply the standards of the Clean Water Act to all waters in Montana, from our major rivers on down to stock ponds and irrigation ditches.”
He goes on to applaude the CWA as “a largely successful policy” that has “benefited” Montana. Except this time it’s different, “But now, we face a crossroads, and the federal government is moving to take over regulation of all waters, and their inability to grasp the reality of water issues in our state could be devastating to Montanans.”
Brown argues the effects of the bill would include: (1) “expand the reach of federal agencies to a virtually limitless level,” (2) “direct assault on the rights of states and municipalities to manage our own water resources,” (3) “decisions made locally would now potentially be subject to federal review,” (4) “common-sense practices … might now require a permit from the federal government,” (5) “Montana may be required to adopt water quality standards to comply with this act, and would need to develop a system to monitor and report on the quality of those waters,” (6) “property owners are more likely to be sued, and basic changes could be held up in court simply because all Montana waters are now subject to federal review.”
But after viewing the bill (using the same link at Montana Headlines) it seems that parts of his argument are exactly like certain arguments made by Schweitzer, namely that they have no basis in fact. Some part’s of Roy Brown’s argument are easy to counter, such as the federal government gaining “virtually limitless power,” and Montanans losing ability to manage waters. The bill that is being considered states, in Section 3 Paragraph 14:
(14) States have the responsibility and right to prevent, reduce, and eliminate pollution of waters, and the Federal Water Pollution Control Act respects the rights and responsibilities of States by preserving for States the ability to manage permitting, grant, and research programs to prevent, reduce, and eliminate pollution, and to establish standards and programs more protective of a State’s waters than is provided under Federal standards and programs.
I don’t understand how “preserving for States the ability to manage permitting, grant, and research programs” is taking the right away. It appears to acknowledge and openly embraces states’ rights.
In fact there isn’t even a change in enforcement. Section 6 reaffirmed preexisting powers of “the Secretary of the Army or the Administrator of the Environmental Protection Agency” under Sections 402 and 404 (subsections not included in this post) of the bill they are amending. Section 402 and 404 deal with Title IV’s permits and licenses. Find out more here or at Wikipedia.
This leaves Sections 4 & 5 as the main causes of concern about the bill. What these sections do is strike from Section 502 paragraph 7: “The term ‘navigable waters’ means the waters of the United States, including the territorial seas.” Then adds a paragraph 24:
(24) WATERS OF THE UNITED STATES- The term `waters of the United States’ means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.
And also changes every instances of “navigable waters” to “waters of the United States.” There is nothing strange about a change like this, after all, what’s the point of protecting Flathead Lake if the water flowing into it is polluted? I know I will receive flak for saying this, but if you look at what makes the Flathead River – North, middle, and arguably south forks – and the various creeks and tributaries that make up the three forks, the bill makes perfect sense. Pollution can come from streams and creeks that aren’t exactly navigable.
This isn’t changing anything but the jurisdiction of the regulations already in place. It will cause more permits because more waters are now subject to regulation. This will also put those who abuse Montana’s waterways in the jurisdiction of federal courts. These are not bad things. Many of us evil environmentalists really just want the opportunity to take our grandchildren fishing, hiking, and rafting and want our grandchildren to have the same opportunity for their grandchildren, etc. While I doubt all the fish will be dead by the time I have grandchildren it is the direction we’re heading. Maybe we do have the right to enjoy Montana’s waters free of pollution.
Congressman Denny Rehberg agrees with Roy Brown. In response to Governor Schweitzer’s request to co-sponsor the bill the honorable congressman made two disturbing statements:
“Montanans shouldn’t have to fill out a bunch of federal forms for every single ditch, creek, and puddle on their property,” said Rehberg, a rancher and member of the House Energy and Water Appropriations Subcommittee.
Many of us disagree. It’s easy to abuse any waterway, but if you’re applying for a permit or filling out federal forms it discourages people from polluting. Just like stiff jail sentences attempt to discourage criminals repeating offenses. It is also important to note that puddles aren’t going to be regulated. This is an attempt to intentionally misunderstand or misinterpret the bill. If there is some part of the proposed paragraph 24 definition of “waters of the United States” invest 15 minutes in some Google searches and you’ll be able to figure out why each item in the list was included.
“While you may not believe this is the intent of the Clean Water Restoration Act of 2007, the harsh reality is that these new regulations will result in extensive litigation and increased compliance costs for folks who make their living off the land,” Rehberg said in the letter to Schweitzer.
This is correct, although also not a bad thing. Yes, if someone is polluting Montana’s waterways they should be sued because doing so is arguably a violation of property rights. If a currently unprotected waterway is polluted, and the pollution flows downstream onto someone else’s property, and affects their riparian area, soil quality, or their freedom of life, liberty, and a pursuit of happiness then the polluter should be sued. This happens all the time over menial things like a proposal that will obstruct someone’s view. At least with pollution there are health issues involved.
Author’s short digression: A notable example of people upset about even the slightest of obstructions in view is the hilarious tale of Senator Ted Kennedy’s opposition to the Cape Wind project because there would be minuscule visibility of wind turbines. He says it’s because a for-profit company wants to use state-owned territory. But I’m sure we have all heard of the 1872 General Mining Act. Link
To conclude, this ongoing argument is really an extension of the unending argument about how best to use and protect our resources, who’s right trumps who’s right, and the value of human life – from both perspectives.
“Passage of the Clean Water Authority Restoration Act is the best way to ensure that all of the water resources in Montana remain fully protected, reaffirm Congress’ original intent to eliminate pollution at its source, and restore clarity and certainty to the law we and most other states rely upon to limit water pollution.”
On this, I agree with the governor. But I’m sure if I spent a few more hours looking at everything he’s said I will probably find contradictory statements, loose facts, and more disappointment. C’est la vie.
Cognitive Coup 
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