Last week, the Trump administration’s Environmental Protection Agency (EPA) published a proposal to revise the definition of “waters of the United States” (WOTUS), further undermining clean water protections and threatening water quality across Montana and the country.
The proposal, which allegedly implements the Supreme Court’s decision in Sackett v. EPA, removes federal protections from many rivers, streams, wetlands, and lakes, risking increased pollution to waterbodies that support drinking water, recreation, fisheries, and agriculture.
“Trump’s EPA administration has sadly taken steps to drastically weaken protections for waterways, contrary to the intent of the Clean Water Act,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “If adopted, the new definition will dramatically curtail the scope of protections for waters and wetlands across Montana – risking our drinking water, community health, and way of life. In the face of proposed federal rollbacks that benefit polluters, now is the time for the Montana Dept. of Environmental Quality to step up, pick up the slack, make good on our state constitutional promise of a clean environment, and improve management and enforcement actions protecting Montana’s clean water resources.”
In 2023, the Supreme Court severely weakened the Clean Water Act by gutting protections for a majority of Montana’s streams, which is particularly troubling given that over a third of river miles assessed in the state are already impaired at-law. Without federal WOTUS protections, water quality is likely to worsen, not improve. And while wetlands only comprise approximately 3% of Montana’s land base, they provide critical wildlife habitat in the state, flood protection, and natural pollution filtration.
This new rule takes the Supreme Court decision and rolls them back further by removing protections for any intermittent or ephemeral waterway, or those that flow seasonally or inconsistently and lack a direct surface water connection. These new definitions ignore well-established science on the connection between groundwater and surface water, the importance of all headwater reaches to downstream water quality, and the harsh reality that climate change and prolonged drought is likely to further reduce the number of water bodies afforded protection under any WOTUS rule.
Complicating any efforts to improve water pollution control in Montana moving forward, Montana law prohibits state agencies from implementing water protections more stringent than federal law. This means that, even presuming our state agency possesses the political will, our regulators may not be able to fill in all the gaps to meaningfully protect “waters of the state” that are now excluded from the federal Clean Water Act without legislative or legal action. It is a tragic state of affairs when critical waterways, feeder streams, and fish and wildlife habitat are the most vulnerable to pollution and degradation since the adoption of the Clean Water Act under President Richard Nixon in 1972.
A public comment opportunity is now open until January 5, 2026.