Lawsuit Challenges Pollution Loopholes & Exemptions in New, Federal Clean Water Rule

For Immediate Release, July 22, 2015


Guy Alsentzer, Upper Missouri Waterkeeper, 406-570-2202,

Tina Posterli, Waterkeeper Alliance, 516-526-9371,

Adam Keats, Center for Food Safety, 415-826-2770,

Brett Hartl, Center for Biological Diversity, (202) 817-8121,

Lawsuit Challenges Pollution Loopholes & Exemptions in New, Federal Clean Water Rule

New EPA Rule Hurts Water Quality, Human Health, and Wildlife

BOZEMAN, MONT. — Today Upper Missouri Waterkeeper joined a broad coalition of conservation groups in filing a lawsuit challenging the new Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) rule that defines which “waters of the United States” can be protected against being destroyed, degraded, or polluted without a permit under the Clean Water Act (CWA).

In a troubling move, the agencies’ new rule arbitrarily exempts and removes safeguards for critically important streams, wetlands and other waters, many of which had been protected since the 1970s.  These unprecedented exemptions are contrary to previous legal precedent and clear scientific evidence demonstrating the importance of these waters for clean drinking water, recreation, fisheries, and wildlife.

“The new rule’s loopholes threaten hundreds of headwater streams in mountainous Montana – and untold thousands throughout the West – with less protections and more pollution,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper.  “Montana is the headwaters state to three continental watersheds; it is critical we advocate for the strongest rule possible, consistent with sound science and legal precedent, to protect clean drinking water and the upstream waters on which it depends. The EPA certainly did a huge disservice to Montana’s downstream communities who will bear more pollution and costs under this misguided rule.”

Under the new rule wetlands, ponds, and other small water bodies can only be protected if they are located within 4,000 feet of a stream or river. However, if a wetland is just one foot over the arbitrary 4,000 foot line, it cannot be protected, no matter what — even if it is vitally important in preserving downstream water quality. Similarly, in what appears to be a last-minute concession to polluters, the agencies substantially weakened CWA protections for wetlands and ponds that are adjacent to streams and rivers if those waters are currently used in ‘normal’ farming, ranching or silviculture activities. These are new pollution exemptions not allowed previously.  Contrary to science and established law, the new rule also categorically reduces protections for tributary streams, wetlands, streams that have been ditched or channelized, and waters that are hydrologically-connected to protected, downstream waters via groundwater.

“This rule change will weaken protections for waterways on and near big industrial agricultural operations that can house thousands and thousands of pigs or cattle, likely resulting in more pollutants on our food and in our environment,” said Adam Keats, senior attorney at the Center for Food Safety. “The EPA and the Army Corps should be working to strengthen, not gut, the laws that keep pollution in check.”

The rule’s arbitrary lessening of protections afforded headwaters and hydrologically-connected groundwater threatens Montana’s clean water.  As a semi-arid state currently in a drought, the majority of streams and creeks in Montana’s mountains and valleys only flow intermittently during late spring and summer, after snowmelt.  A recent spatial analysis showed that in Western Montana, 59% of stream miles are in headwater streams.  Similarly, most of Western Montana’s major rivers are hydrologically-connected to groundwater.  Even though science has proven that protecting these upstream reaches is essential to the health of Montana’s rivers and the communities they support, the agencies’ new rule actually decreases protections for these waters.

“Communities in California and across the West are already experiencing degraded water quality and drinking water due to this expansive drought.  It doesn’t make sense for EPA to allow more degradation of our waters by limiting the scope of protections when science shows all connected waters, no matter how small, impact our hydrological systems,” explained Alsentzer.

Equally bad, the EPA and the Army Corps of Engineers’ failed to ensure that these exemptions do not jeopardize the survival of hundreds of endangered species as required by the Endangered Species Act.  Lessening the scope of protections for headwaters in Montana may adversely affect the long-standing, costly restoration efforts the state and many stakeholders have made on behalf of the protected bull trout and pallid sturgeon, not to mention the arctic grayling. The rule similarly risks endangered salmon and sturgeon on both coasts, the California red-legged frogs, and bog turtles among many others, all of which depend on clean, unpolluted water, water that is now threatened by the exemptions created under the new rule.

“Freshwater species in the United States are already going extinct hundreds of times faster than terrestrial species, and these loopholes will make survival even harder for them,” said Brett Hartl, endangered species policy director at the Center for Biological Diversity.“There’s no question that eliminating protection for thousands of wetlands & waters will hurt people and wildlife for generations to come.”

Despite these unprecedented concessions to industry, big-business, and corporations, opponents of the final rule have mounted a massive misinformation campaign claiming the agencies are expanding the jurisdiction of the Clean Water Act, which couldn’t be further from the truth. In fact, the Montana Attorney General’s Office and several Mid-Western states are actually suing the EPA and Army Corps – using taxpayer monies – over the new rule on these exact grounds, even though their claims lack scientific or legal credibility.

The truth of the new rule is this: the EPA and Army Corps have improperly reduced their jurisdiction over historically protected waters, even admitting that “[t]he scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.”

Montana’s fabled outdoors heritage – and key outdoors economy – depends on strong protections over all types of waterways, whether they be upstream, downstream, or connected though groundwater,” said Alsentzer. “It is critical that the strongest pollution protections possible extend to Montana’s headwaters, hydrologically-connected groundwater, ditches and wetlands so that future generations can inherit the same natural wonders and clean drinking water that we now enjoy.”

The coalition, represented by Earthrise Law Center, Lewis & Clark Law School’s Environmental Law Clinic, and Stanford Law School’s Environmental Law Clinic, includes Montana’s Upper Missouri Waterkeeper, Waterkeeper Alliance, the Center for Biological Diversity, the Center for Food Safety, Turtle Island Restoration Network, Humboldt Baykeeper, Monterey Baykeeper, Russian Riverkeeper, and the Snake River Waterkeeper.


Read our Op-Ed’s in the Bozeman Chronicle, Missoulian, and the Helena Independent Record

Upper Missouri Waterkeeper is the only water advocacy organization dedicated to protecting and improving waterways and community health throughout the 25,000 sq. miles of Southwest and West-Central Montana’s Upper Missouri River Basin. Using strong science, citizen action, and the law UMW defends waterways and communities from projects that would do harm, and fights to secure new regulations and protections that will provide critical defense and progress in the future.