Testimony on “Waters of the United States” Rule Before Montana Legislators

On Thursday, September 3, 2015 we provided testimony and answered questions from the Montana Legislature’s Water Policy Committee concerning the EPA and Army Corps’ new “Waters of the United States” rule, AKA the “Clean Water Rule.”

The Montana Capitol
Montana’s Legislature convenes biannually in a session and, during recesses, uses various committees to research important issues, such as the impact of a new federal rule defining the scope of federal protections over water resources in Montana.

One of the Water Policy Interim Committee’s research topics during the 2015-16 recess was the potential for Montana to assume permitting duties over the disturbance of wetlands and discharge of fill materials into wetlands/rivers. These types of actions normally require what is called a “§404 permit,” issued by the U.S. Army Corps of Engineers. 404 permits are the corollary permit to the more widely known “402 permits” typically issued by state environmental agencies, and which authorize the discharge of pollutant(s) from point sources into waterways.

Because the concept of permitting fill activities into wetlands necessarily includes a determination of which areas are “wetlands” protected at law, the Committee was also interested in hearing expert opinions from stakeholders directly engaged on the issue of the scope of water protections mandated by the federal government. Last Thursday the Committee heard EPA’s perspective on their new rule, the Montana Attorney General’s Office perspective, and Upper Missouri Waterkeeper’s perspective.

Suffice to say a quick summary of those positions goes something like this:

  • EPA believes the new rule is fine and strikes a good balance between competing interests;
  • the Montana AG’s Office believes the rule is an illegal overreach by the federal government and should be struck down by the courts; and
  • Upper Missouri Waterkeeper believes the rule is a valid exercise of federal authority, does some good things, but also includes arbitrary and unscientific standards that limit the scope of protections for water and should be narrowly improved on those grounds.

Want to learn more about why EPA’s new Clean Water Rule matters in Montana?

Click here to read our testimony to the Water Policy Interim Committee.

Click here to read our recent Op-Ed in major newspapers in Montana.

Click here to read a scientific report that uses four case-studies to illustrate the importance of strong clean water rules that afford full protections to headwater streams and connected wetlands.