Lawsuit Filed Challenging Massive Rollback of Clean Water Protections in Montana

Today we filed a formal notice of intent to sue the Trump EPA for eliminating longstanding Clean Water Act protections for the nation’s waters, including approximately half of all wetlands and potentially millions of miles of streams.

The Trump rule allows polluters to pave over wetlands and to dump pesticides, mining waste, and other pollutants directly into these now-unprotected waterways.

The impacts of this rollback were revealed in part by a leaked Environmental Protection Agency (EPA) analysis that indicates arid states like Arizona, New Mexico, Nevada and even Montana could lose protections for the vast majority of their waters. The loss of protections puts hundreds of endangered species at greater risk of extinction, including the Chiricahua leopard frog, Chinook salmon, and southwestern willow flycatcher.

The final rule limits protections only to wetlands and streams that are “physically and meaningfully connected” to larger navigable bodies of water. The radical change repeals long-standing protections for wetlands, streams, and rivers that have been in place since the Nixon administration and that are responsible for major improvements in water quality nationwide.

Specifically, the Trump EPA rule redefines what waters are federally protected, limiting Clean Water Act protections to wetlands with a continuous surface connection to larger lakes, streams, or rivers and removing federal protections for rain and snow dependent streams. By the EPA’s own estimate, it would remove protections from 51% of our nation’s wetlands and 18% of streams, making it easier to pollute, pave over or build on them, and states may no longer be required to clean up polluted wetlands.

President Trump’s Executive Order 13778 required EPA and the Army Corps of Engineers to review the rule defining which waters deserve Clean Water Act protections. The agencies decided to protect only those waters that have “a relatively permanent surface connection” to a territorial sea or commercially navigable body of water such as a shipping channel—a ridiculous legal interpretation that ignores decades of settled law and the basics of hydrology. The rule partially follows the minority legal view of the late Supreme Court Justice Antonin Scalia, which was never adopted by the Supreme Court, but goes even further to eliminate protections for many other waters across the country.

“This Trump EPA Rule reverses more than 40 years of progress and settled law,” said Guy Alsentzer, Executive Director at Upper Missouri Waterkeeper. “Clean water and healthy landscapes are Montana’s most important resources. The 2020 dirty water rule recently rolled out by the Trump EPA attacks long-standing protections for wetlands and small headwater streams which will have far-reaching negative impacts on Montana’s outdoors, its residents, and unnecessarily risk our strong outdoors-based economy. Their actions are not only reckless—they are illegal.”

In rushing to comply with Trump’s executive order, the agencies violated both the Endangered Species Act and National Environmental Policy Act. Both laws require the federal government to “look before you leap” and ensure that the environmental consequences of a particular action will not cause unintended environmental damage.

With many Americans dealing with unsafe drinking water, now is not the time to cut back on clean water enforcement. We need more—not less—protection for clean water. There are no waters that are safe to pollute. We all know wetlands flow into streams, which flow into small rivers, into bigger rivers, and ultimately the ocean.

The Trump Dirty Water Rule Will Have Serious Impacts on Montana’s Waterways and Wetlands

In Montana, EPA estimates that 54 percent of the streams have no other streams flowing into them, and that 63 percent do not flow year-round. Think about that – over 50% of Montana’s waterways could lose pollution protections!!  EPA data also shows that a quarter-million Montanans receive some of their drinking water from areas containing these smaller streams, and that at least 12 polluters are located on such streams and currently have permits under the federal law regulating their pollution discharges.

The Trump EPA Rule means countless miles of Montana waterways and potentially hundreds of acres of wetlands lose pollution protection, and so too means polluters are now exempted from taking responsibility to clean up their pollution and protecting local water quality.

Upper Missouri Waterkeeper stands with our colleagues across the nation in challenging the Trump EPA’s illegal, and reckless, rollback of clean water protections for Montana waterways.

Read news coverage about the Trump EPA Dirty Water Rule in the Montana Standard here.

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