Jory Ruggiero, a Bozeman water and land attorney, in a Dec. 22 Standard guest column, tells readers more federal regulation of Montana’s managed state waters is a good idea. Chuck Denowh, a property rights advocate, in an earlier column, had a differing view.

Everyone wants clean water.

Question: Can Montana regulate its waters, or should the federal government have more oversight? This concern is tied to the EPA’s new definition of Waters of the United States Rules (WOTUS), which would expand the federal control.

Many are calling new WOTUS rules a flagrant case of government overreach, and Montana Attorney General Tim Fox joined some 30 other states and professional organizations in saying just that. A federal court agreed with petitioners, ruling that the EPA’s desire to oversee a state’s managed waters cannot be enforced nationwide and further saying it is likely that the WOTUS update is illegal. The appellate court placed a stay on its implementation.

Interpretation of “Waters of the United States” has more than once come before the U.S. Supreme Court. Generally, the court has upheld designations by the U.S. Army Corps of Engineers or EPA that show a continuous connection between a water body in question and a navigable river. However, in 2001, the high court nixed the idea adopted by the Corps and the EPA that said isolated waters used by migratory birds that cross state lines are WOTUS.

In a case before the U.S. Supreme Court in 2006, regarding a wetland not connected to a navigable waterway, four justices voted to affirm a lower court decision that the wetland was WOTUS. And four justices voted to strike the idea based on a more strict interpretation of “navigable waters.” Justice Kennedy voted to strike the Corps interpretation but under a different standard of connecting waters.

On June 29, 2015, the Corps and EPA promulgated a new 75-page regulation attempting to clarify the scope of WOTUS, expanding the Corps and EPA reach to cover independent ponds, prairie potholes, and seasonal waters that dead-end. These examples don’t interact with free flowing, navigable waterways now managed by the Feds.

Ruggiero says the new WOTUS definition is based on “years of scientific study, agency review and public input.”

What about public input?

In an under-the-radar attack against state managed waters, former President Obama’s EPA secretly promoted the new WOTUS rules using illegal propaganda -- defined as covert activity intended to influence Americans. The EPA and Corps also used federal resources to conduct illegal lobbying, urging the public to contact Congress to take a certain kind of action on pending legislation.

The Federal Government Accounting Office found the EPA violated both of those prohibitions when it promoted new WOTUS rules on social media entities including Twitter, Facebook, YouTube, and Thunderclap to tip public opinion in favor of the new rules before the agency began collecting public comment.

The fundamental question, then, is who should determine what is good for state managed waters -- Washington, D.C. bureaucrats (3,000 miles from Montana) or local experts familiar with the resources they are protecting?

If a government is not doing the will of its constituents, then the proper political response should be to remove administrators from power. Politicians elected at the state level are more accountable to voters. The same cannot be said for Washington bureaucrats.

-- Cort Freeman of Butte is a former business reporter, businessman, and retired corporate communication executive.


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