On Monday, a legislative committee heard testimony from several environmental professionals who, although frustrated, said it was better for Montana to defer to the U.S. Army Corps of Engineers when it comes to permitting projects that require construction work in or near streams or wetlands. Such projects include dam, levee, bridge or road construction, and they sometimes require wetlands or streams to be moved.
The professionals said the federal agencies probably did a better job of conducting all the necessary coordination, but that the agencies were strapped by Congressional budget cuts. With federal agencies needing more funding to do a better job, it would be very costly for Montana to take over.
“Right now, it costs nothing to get permits from the Corps,” said Tom Martin, Montana Department of Transportation Environmental Services Chief. “MDT needs predictability (for costly projects). We have a good relationship with the Corps; it’s very easy. In my eight years in this position, we have never seen a project that we couldn’t get permitted.”
Part of the federal Clean Water Act, Section 404, directs the Corps to issue dredge-and-fill permits as long as projects have proper safeguards to limit the amount of sediment released into a stream or wetland. Too much sediment in streams ruins water quality and can kill aquatic insects and fish.
Any state can agree to assume the Corps’ Section 404 responsibility although none has. Montana already oversees a number of federal programs, such as endangered species management or pollution discharge permits, so some people want Montana to take over 404 permitting. While some want it to reduce federal authority, others merely complain that federal bureaucracy makes permitting take too long.
Wetland Group Manager Rich McEldowney, of the environmental consulting company Confluence, said working with the Corps was like sending 404 applications into a black box: companies can’t learn the status of their permits for months.
“I have two permits in and we’re up to four months now,” McEldowney said. “The 404 program is functioning; it’s just not as efficient as it could be. To handle all the projects in the state, I would recommend doubling the current staff.”
McEldowney said part of the delay could be due to the high turnover rate of Corps employees over the past five years, so current employees are less experienced.
That’s why Sen. Bradley Hamlett, D-Cascade, proposed Senate Joint Resolution 2, which passed in 2015, to study the possibility of Montana taking over the 404 program.
But as the Water Policy Interim Committee learned, it’s more complicated than just wrestling with red tape.
Only two other states have considered assuming 404 responsibilities: Alaska and Oregon.
Starting in 2013, Alaska spent $1.5 million just to get the process started but gave up after two years. Oregon has considered applying but hasn’t taken action for 20 years, because it would require at least 34 new employees to manage the program.
Christian Schmidt, Montana Department of Environmental Quality Administrator, said it would take at least four or five years for Montana to get up to speed on the program, and the size of the state would make it hard for employees to travel to all the sites to verify compliance.
David Patrick, owner of environmental consulting company Eco-Asset Management, used to work as a federal regulator and said part of Section 404, wetland mitigation, is a very complicated process because of all the coordination that needs to go on between the Corps, the Environmental Protection Agency and the Fish and Wildlife Service.
EPA regulators experienced in 404 permitting used to work in Montana until budget cuts started kicking in about 15 years ago, Patrick said. Now, Montanans have to work with just one or two regulators in Denver. And those regulators have fewer FWS or Corps employees to work with so they run into delays too. In addition, regulators sometimes have to deal with National Environmental Policy Act requirements to take public input.
“They have had a lot of frustrations over the years. That’s what a state agency would have to take on,” Patrick said. “My experience with the Corps is that these are good people working hard and they are completely overwhelmed. While they might have a $1.3 million budget, it’s not keeping up very well, so we do have time lags in processing. But I’d be surprised that the cost would be less than $1.5 million to maintain a staff of nine to 10 people.”
The biggest challenge comes from the recent change to the Clean Water Act. After two Supreme Court rulings left certain types of waters undefined, the EPA sought in May to clarify which streams and waters required federal oversight to preserve water quality.
Agricultural and natural resource industry lobbies opposed the rule, which is now hung up in the courts. If the rule prevails, more waters would fall under 404 requirements.
Rep. Carl Glimm, R-Kila, said if Montana took over the 404 program, it would have to comply only with the Clean Water Act and not any additional rules.
Rep. Kathleen Williams, D-Bozeman, disagreed, saying Montana would probably have to enforce the rules too, because many of them were the result of federal court rulings.
That and other questions need to be answered before the committee issues its report in September. But Hamlett said state assumption didn’t look good.
“It seems like not all is well. But from what I’m hearing it’s kind of a bad marriage: there are problems, but nobody’s willing to go someplace else yet,” Hamlett said.