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NACo Environment, Energy & Land Use Committee Report - 2013 Legisltive Conference

Posted Date: 
March 11, 2013
John Prinkki, Carbon County Commissioner

The NACo Environment, Energy & Land Use (EELU) Committee meetings were once again very interesting and controversial. Our first meeting on Saturday morning was to discuss which resolutions introduced in other committees would be considered for discussion by the EELU Committee. Only one resolution was submitted to the Committee in advance of the meeting, but there were 5 other resolutions that were considered cross-jurisdictional and placed for consideration and voting on the March 3rd agenda at 1:00PM.

The following is a concise synopsis of actions and presentations before the EELU Committee.

Saturday, March 2, 2013; Meeting on Resolutions:

  • Cross-Jurisdictional Resolutions (resolutions that originate in other committees); The following resolutions were claimed by the EELU Committee.
    • Request to claim a resolution before the Finance committee; Proposed changes to the Tax Exempt Status Municipal Bonds for Use in Deficit Reduction
    • Request to claim a resolution before the Public Lands Committee: Proposed Resolution Opposing the Bureau of Land Management Promulgation of Duplicative Hydraulic Fracturing Regulations.
    • Request to claim a resolution before the Finance Committee; Proposed Resolution on Preventing the Enforcement of Federal rules, Laws, or Regulations not ratified by Congress.
    • Request to claim a resolution from the Finance and Intergovernmental Affairs committee; Proposed Resolution on Support for the Establishment of Regional Infrastructure Improvement Zones.
    • Proposed Resolution before the Telecommunications and Technology Steering Committee; Resolution on Antennas on Public Property.
  • EELU Resolutions
    • Resolution on US Corps of Engineers Levee Vegetation Removal Policy.
      • The issue addresses the Corps of Engineers lengthy and costly review period of projects to perform normal maintenance of levees, and the conflict between various Federal agencies positions related to levee management; USFWS, COE, FEMA.

The Water Quality Subcommittee met at 1:00PM to hear from the head of the EPA’s Acting Administrator for Water, Nancy Stoner; and Connie Bosma, Chief Municipal Branch, Office of Water.

  • Pending EPA Regulations, Local Storm Water Realm
    • Nancy Stoner, Acting Asst. Admin. for Water, EPA
      • Make every dollar do the best environmental improvement.
      • Premise that local governments want clean water improvements
      • Integrated communication project; Holistic look at issues
      • Consider storm water runoff from new developments
    • Connie Bosma, Chief, Municipal Branch, Office of Water, EPA
      • Concern storm water pollution; stream bank erosion??
      • Regulate areas where there are large areas of impervious surfaces from development
    • Proposed Storm water rule goals.
      • Would develop performance standards for water quality.
      • Encourage watershed approaches for managing municipal storm water discharges.
      • Retention based standard; based on 50% retention of storm water runoff.
      •  Would define average sized storm for a region.
      • Provide relaxed standard for redeveloped sites
      •  A Watershed plan could replace performance standards
      • The rulemaking schedule will start in June 2013, with implementation scheduled for 2014
    • Discussion over need for EPA rulemaking; preference for guidelines.

In discussing the issue of EPA rule making, Nancy Stoner provided information about how local jurisdictions could participate and how the process will work. This is a very important issue that could affect many communities in Montana. It will be difficult to keep up with all of the rule making and public lands management plans that are being written.

We next heard about Clean Water Act Court Cases Relevant to Local Government from Shawn Hagerty, a Partner, in the law firm of Best, Best and Kreiger, LLP Mr. Hagerty discussed three cases involving the Clean Water Act:

  • Los Angeles County MS4 flood control system; The Los Angeles and San Gabriel Rivers have concrete lined rivers flood control systems and the monitoring of rivers showed exceeded TDML's; the NRDC sued Los Angeles County. Was there pollution from the county? LA County not held liable; Non-point source pollution, upstream source.
  • The Silva-cultural rule deals with logging roads consideration that they are a non-point source.
    • The law suit  argument is over whether storm water runoff from logging road is non-point source, or a point source of pollution
    • The EPA also had considered logging an industrial use of a road, requires another permit level.
  • In a Virginia Dept. of Transportation case, the EPA used non pollutants as surrogates for pollution. The effluent guidelines limitations for construction sources for turbidity and numeric limitations were based on water flows. This case has reached a settlement agreement. The EPA must consider changing the numeric limitations.

The Solid Waste Committee heard from Susan Robinson, Federal Public Affairs Director; Waste Management Inc. Waste Management and other waste management companies are changing how they manage the solid waste stream from landfill materials to recycling programs, energy sources and extended product use. 

Sunday, March 3, 2013, 9:00AM - 11:00 AM

The Air Quality Committee heard from Jeanne Briskin, Scientist, from the EPA. Ms. Briskin discussed recent developments in Shale Gas/ Hydraulic Fracturing. The EPA is writing a Study of the Potential Impacts of Hyd. Fracking on water resources. The study

  1. Used Best Available science
  2. Independent sources
  3. Peer reviewed by stakeholders.

We next heard from Lou Hayden, WPX Energy, a top 10 Natural Gas company representing the Americas Natural Gas Alliance. Lou argued that natural gas is properly regulated. Lou argued for no tax increases, that natural gas is clean and efficient, and fracturing is not harmful to the environment. Lou stated that the natural gas industry is reinvesting 120% of profits into R&D.

Amy Mall, Senior Policy Analyst, Land and Wildlife Policies, Natural Resource Defense Council laid out the NRDC position of energy development and fossil fuels connecting many human and animal health issues with hydraulic fracturing and fossil fuels. Amy provided no evidence to support her conclusions.  

Questions asked at the end of the session:

  • Is Tracer technology being developed and used? The EPA is reviewing efficacy of tracers to track pollution.
  • Is hydraulic fracturing causing seismic triggering? The EPA is not aware of fracturing impacts on earthquakes.
  • Are there any incentives for natural gas vehicles? WPX, not in place at this time. Congress looking at fueling station support, looking at market based subsidy
  • Energy Expo on Oil Gas and Coal, to drive economic recovery
  • Oregon; Wind energy development/ Energy companies offset impacts
  • Cope, Lemhi County, Idaho: questioned the EPA if they use real peer reviewed science for accuracy. Cope stated cases of “peer” reviewed science that eventually were proven to be totally wrong that  were in a log book he inherited from the veterinarian who owned the clinic that Cope now operates in Salmon, Idaho.
  • Cope pointed out how wrong the NRDC was in their presentation stating that there were at least four outright lies in the presentation by Amy Mall.
  • The EPA responded that they are trying to be very careful to use and collate good data.
  • Has there been chemical dumping? Lou Hayden responded that WPX made mistake initially in not disclosing chemicals because of the          outcry that caused. The industry is disclosing which chemicals are used now. Lou referred to  
  • Referencing Colorado use of; EPA has access to proprietary information and respects the industries proprietary and confidential information.
  • Can you justify subsidies to oil and gas companies? WPX, access to tax deduction, not a government check, referring to the tax credits paid to wind energy companies.
  • See subsidy chart below: Source; Energy Information Administration, Dept. of Energy.

Subsides to Electricity Production by Fuel Type, 2010 (millions of dollars)

Fuel Type

FY2010 Net Generation (billion kWh)

Tax Subsidies

Other Subsidies - direct expenditures,  R&D expenditures, loan guarantees, federal electricity support





Natural gas and Petroleum Liquids




























  • Pending Air Quality Regulations/Legislation impacting Local Government
    • Erika Young, Transportation Director, National Asso. Regional Councils
      • Encourage the use of transportation plans to reduce tailpipe emissions.
      • The EPA is writing rules regulating PM 2.5 in non-attainment areas. PM 2.5 is difficult to measure, and modeling is used with PM10 as a surrogate.
      • The question was asked if Natural Events were included in local emissions quantities. Whether natural events are considered in measuring air quality in non-attainment areas is a two edged sword. Emissions from natural events such as CO2, mercury and VOC’s are a very large part of worldwide emissions and I think that they should be considered when forest management issues are debated. If natural events emissions were considered in communities such as Missoula, it could have serious impact on industry and transportation.
  • How to make Federal Rule Making work for you.
    • Laura Free, Office of Regulatory Policy and Management, discussed how local governments could efficiently work through EPA regulatory process. The EPA is cooperating with other federal agencies on the Action Development Process in developing a rulemaking process.

Full EELU Committee

  • EPA's Regulatory Agenda; Marty Stanislaus, representing the EPA stated they have 26 Action Items to involve local communities including Technical Assistance through colleges and Institutional control guidance to work with local communities on brownfields projects.
  • Claimed Resolutions
    • Proposed Res. on Antennas on Public Property.
      • The resolution addresses an attempt by private communication companies to have the FCC supersede local government control over their own public buildings. The proposed policy states that “NACO opposes efforts to imposed additional limits on local authorities to determine installation of antennas on public property”.

        Passed unanimously

    • Proposed Res. to oppose changes to Tax-Exempt Status of Municipal Bonds in deficit reduction.
      • The proposed policy states, “ NACO opposes efforts to alter the tax-exempt status of municipal bonds in any proposals to deal with the federal deficit.

        Passed unanimously

    • Proposed Res. on Regional Infrastructure Improvement Zones.
      • The proposed policy stated “NACO supports legislation that provides for the establishment of Regional Infrastructure Improvement Zones in federal law.”

        Motion to adopt failed

    • Res. on Preventing the Enforcement of Federal Rules, Laws or Regulations not Ratified by Congress.
      • The proposed policy stated “NACo supports legislation which prevents the enforcement of any federal rule, law or regulation not specifically ratified by the US Congress, unless approved or ratified by the respective state legislature in states wherein the rule is to be applied.” Concern was expressed over any legislative body having the ability and time to discuss every proposed rule or regulation. The issue was hotly discussed.

        Failed by large margin

    • Proposed Res. Opposing BLM Promulgation of Duplicative Hydraulic Fracturing Regulations.
      • The resolution was amended in Public Lands to read, “ Naco requests the BLM continue to defer the regulation of hydraulic fracturing to the States that already have hydraulic fracturing regulations in place which are based on State primacy over groundwater as defined in their State Constittution. The BLM should assist with basic rules to States which have no rules related to hydraulic fracturing.”
      • The resolution came out of Wyoming and was presented by Park County Commissioner, Loren Grosskopf from Cody. The issue is that the Bureau of Land Management is proposing rules that ignore States Primacy over ground water, and would be redundant with State rules dealing with hydraulic fracturing. 

        The resolution was very hotly discussed; PASSED 38 TO 20

  • EELU Resolutions
    • Porposed Res. on U.S. COE’s Levee Vegetation Removal Policy.
      • The proposed resolution states ‘NACO supports H.R.399, The Levee Vegetation Review Act. NACO supports modifications to the Corps’ levee vegetation policy that (1) considers regional variations across the nation; (2) includes a variance and exemption provision where appropriate; (3) conforms to other federal and state laws and allows for risk-based and science based management decisions; (4) includes local government in a transparent and collaborative process and (5) delegated limited authority to approve variances and exemptions to Corps Division Commanders. 

        Passed unanimously

The rest of the week we were able to attend various forums, meet with our congressional staffers and Senator Baucus, Senator Tester, and Congressman Daines. The meetings with our Congressional delegations were very productive and I felt that both staff and our Senators and Congressman were very attentive to what MACo had to offer.

I was also very appreciative of the opportunity to join Commissioners Leslie Robinson, Richard Dunbar, Connie Eissinger, and Carl Seilstad at a meeting with the Assistant Secretary, U.S. Department of State, Kerri-Ann Jones, Bureau of Oceans and International Environmental and Scientific Affairs. Kerri-Ann and six of her staff listened closely to our position regarding the Keystone XL Pipeline and requested additional information regarding the economic impact of the pipeline, and cooperation between TransCanada and the counties that the XL Pipeline will run through.

John Prinkki | | (406) 446-1231