State policy updates from Sen. Barrasso’s office shared at recent meetingWritten by Natasha Wheeler
Worland - The Nov. 3 Presidential Memorandum concerning mitigating impacts to natural resources, BLM Resource Management sage grouse plan amendments and the Waters of the U.S. (WOTUS) rule were some of the topics addressed by Travis McNiven on Feb. 13 at the annual meeting of the Guardians of the Range in Worland.
McNiven, state natural resources advisor to Sen. John Barrasso (R-Wyo.), encouraged producers to read the memorandum to understand the language being used in the document.
“This memorandum sounds nice, but it applies to a lot of agencies such as the Bureau of Land Management (BLM), U.S. Fish and Wildlife Service and Environmental Protection Agency (EPA), and it has some concerning terms that are not defined,” McNiven noted.
Irreplaceable natural resources and priority sites were two terms he cited as examples.
A number of concepts also concern McNiven, including advanced compensation, durability and implementation timelines related to mitigation efforts.
“Advanced compensation is the idea that, if we are going to take certain actions, we have to compensate and mitigate upfront and front-end the costs before actions can happen,” he explained.
The memorandum also refers to “net benefit,” a term that extends beyond “no net loss,” which could affect how mitigation actions are designed.
“Durability is a concept that is practiced already in mitigation. If we mitigate an action, we need to offset it with something for an equal length of time,” McNiven said. “What this memorandum adds on top of that includes the resilience of the benefit to include possible future environmental change. How are the federal agencies going to determine possible environmental change?”
Agencies have one year to finalize a mitigation policy, according to the memorandum, but McNiven notes there is concern with this timeframe.
“To do a good job with mitigation, a lot of data needs to be in place. There is a lot of baseline information about what exists now yet to be determined, so we really question if a year is going to be sufficient time to do a good job of being able to produce scientifically based information,” he remarked.
Wyoming is familiar with the amount of work it takes to create effective mitigation plans, as seen in the development of sage grouse plans, and McNiven noted that 10 to 12 instruction manuals should be released in the coming months describing how the BLM will implement those plans.
“Wyoming is in a better spot than some of the other states because of the work that the state has done, but that doesn’t mean we are out of the woods,” he said.
Flexibility and a good working relationship between departments will continue to be important as sage grouse management plans move forward.
“I have often heard concern from the grazing community about the seven-inch stubble height that’s in the tables in the plan,” he continued. “That is not a requirement. The tables are based upon a minimum of 12 inches or more of annual precipitation, and a lot of places in Wyoming don’t have that.”
On the ground
Surveying the true conditions of the landscape will be an important component of implementing conservation and creating agreements between the BLM and Wyoming Department of Agriculture, McNiven added.
“There is going to be a lot of time out on the ground,” he stated. “It’s not going to be a fast process. I’ve had some good conversations with the state and federal agencies here in Wyoming and they want to make it successful.”
McNiven encouraged producers to stay engaged in the process, commenting that the ultimate success of work completed so far will depend on how actions are implemented by the BLM and Forest Service.
Moving on to the Waters of the U.S. (WOTUS) rule, McNiven described the history of how the term “significant nexus” came to be.
“In 2006, there was a case in the Supreme Court that basically came down to whether a certain wetland was defined as a navigable water. Navigable waters have traditionally been considered federal waterways,” he explained.
The result was a five to four verdict, where Justice Anthony Kennedy filed an opinion agreeing with the majority judgment that the Clean Water Act is limited and applies to relatively permanent bodies of water. However, Justice Kennedy’s opinion went on to include the term “significant nexus,” questioning whether the waterway in question served as a significant nexus to navigable water, avoiding full agreement with either side.
“Even though the court case was there, it left a certain amount of ambiguity and, the EPA decided they needed to solve that,” he remarked.
After going through many variations and drafts, the final rule was released, raising concern from many different groups throughout the country.
“I can’t emphasize enough how expansive this rule is,” McNiven stated. “The rule has more to do with land than water when we consider what lands and land activity we may be required to have a permit for, whether there’s water there or not.”
The rule was stayed by a district judge in North Dakota for Wyoming and 12 other states that challenged the rule with a lawsuit, and it was later stayed nationwide by the sixth circuit court.
“Right now, the rule is stayed, meaning that it’s not going forward and it’s not enforceable as it moves through the legal process,” McNiven remarked.
He added that Sen. Barrasso has been leading the fight against the WOTUS rule in the senate by introducing the bipartisan Federal Water Quality Protection Act (S. 1140). His bill directs the EPA and Army Corps of Engineers to issue a revised WOTUS rule that protects traditional navigable water and wetlands from water pollution, while also protecting farmers, ranchers and private landowners.
Fifty-seven senators supported Sen. Barrasso’s bill by voting to end debate, however 60 votes were needed for the bill to proceed toward a final vote.
“We will continue to work on it. Stay aware of this issue. It really has a lot to do with what people can and can’t do on the landscape, whether or not there is water in a particular ditch year-round,” McNiven said.