EPA’s New WOTUS Rule Leaves Montana’s Waterways Vulnerable to Pollution

Miles of Waterways Now Excluded from Federal Protection

This week, the Environmental Protection Agency (EPA) published a new Waters of the United States (WOTUS) rule after the Supreme Court ruled in the Sackett v. EPA wetlands litigation in May 2023. The new EPA rule dramatically curtails Clean Water Act protections, favoring polluters over the health of wetlands and headwater creeks across Montana and the nation beyond what was required as a result of the Sackett case. 

“The EPA’s new weakened WOTUS rule is the result of judicial activism, not the result of science, 50 years of legal precedent, or what’s necessary to protect important uses of water. Sadly, the new rule lacks defensible science and plainly indicates a browbeaten EPA is giving up on meaningful efforts to protect the chemical, physical, and biological health of waters across the nation,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “The EPA’s new WOTUS rule defies the intent of the Clean Water Act, and harkens back to a time when our rivers used to catch on fire. If adopted the new rule will dramatically curtail the scope of federal law protections for waters and wetlands across Montana. Thankfully, Montana’s have a constitutional right to a ‘clean and healthful environment.’ Clearly it’s time for the Montana Dept. of Environmental Quality to reevaluate how it applies state law to pick up the slack, make good on the promise of a clean environment, and improve management and enforcement actions protecting Montana’s clean water resources.”

The new WOTUS rule guts Clean Water Act pollution and degrading land use activities protections for a majority of Montana’s streams, many of which would fall outside the scope of federal coverage. This is especially troubling given 35% and 40% of river miles assessed in the state are already impaired at-law, and without federal protections, water quality is likely to worsen, not improve. Similarly, despite wetlands only comprising approximately 3% of Montana’s land base, these areas provide the most important wildlife habitat in the state, critical flood protection, and natural pollution filtration.

The implications of EPA’s new clean water rule would be especially damaging in a state like Montana, where the Gianforte administration, Montana DEQ, and the Montana Legislature are actively working to roll back water quality protections at the behest of polluters. 2023 Legislative Session: SB 240 (exempting smaller subdivisions from otherwise mandatory water pollution control review); SB 285 (limiting water pollution review for subdivisions > 500’ surface water). 2021 Legislative Session: SB 358 (eliminate protective numeric nutrient criteria and adopt weaker, narrative criteria and adaptive planning mandate); SB 165 (eliminate water pollution review for development > 1000’ surface water); HB 527 (limit citizen-initiated zoning petitions); HB 599 (exempt gravel pit proposals from environmental review & limit public participation).

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 without onerous proceedings. This law means that, even presuming our agencies possess the political will to vigorously protect water resources in light of newly curtailed federal law scope, 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, in 2023, critical waterways, feeder streams, and fish and wildlife habitat are the most vulnerable they’ve been to pollution and degradation since the adoption of the Clean Water Act under President Richard Nixon in 1972.