DOJ: News Release

Attorney General: Conservation District Authority Extends to Coal-Bed Methane Wastewater Issues

HELENA – In a formal opinion released Tuesday, Attorney General Mike McGrath held that a conservation district’s authority to implement land-use regulations includes the authority to implement regulations and requirements related to coal-bed methane wastewater operations.

The question arose because the Rosebud Conservation District has proposed a land-use referendum ordinance that includes:

  • review of the anticipated effect of coal-bed methane production on the watershed;
  • Conservation District approval of a conservation plan prior to the beginning of methane extraction operations and
  • a mandatory performance bond to insure compliance with reclamation plans.

Rosebud County Attorney Michael Hayworth requested the opinion.

A Montana law enacted in 1939 lists a number of types of land-use regulations that may be adopted by a conservation district after approval by voters. The list includes a “catchall” provision that provides generally for “other means … as may assist conservation of soil and water resources and prevent or control erosion,” as long as those means are consistent with the general purposes of conservation districts.

The opinion noted the legislature “intended this statute to be a forward-looking provision … to address changing conditions over time.” McGrath held that the statute did not intend to limit districts’ flexibility to devise ways to control effects of coal-bed methane runoff, “a specific threat to soil and water not within the express contemplation of the legislature in 1939.”

“Conserving the water and soils from saline seeps and blowing salts appears to be fully … within the purpose for which conservation districts were formed,” McGrath wrote, continuing that any ordinance that adopts measures to assist in preventing such saline seeps and blowing salts “is clearly within the purpose and authority of the district.”

An attorney general’s opinion carries the weight of law unless a court overturns it or the legislature modifies the laws involved.

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