Last Friday we joined Waterkeeper Alliance in submitting these technical comments to the Environmental Protection Agency concerning its proposed, revised rules defining the jurisdiction of the federal Clean Water Act.
We support the Proposed Rule to the extent that it maintains protections for Traditionally Navigable Waters (“TNWs”), Interstate Waters, and Territorial Seas. Additionally, we support the agencies’ and the Science Advisory Board’s (“SAB”) work to document the “significant nexus” between these historically regulated waters and tributaries and adjacent waters. We agree that all of these waters (including headwaters, intermittent streams, ephemeral streams, and adjacent waters) are connected to downstream waters that are covered under the CWA, and that they should be categorically protected.
At the same time, we are greatly concerned by, among other things, the agencies’ decision to narrow the class of tributaries and impoundments that have been historically given categorical protection, the agencies’ removal of the broader interstate commerce grounds for protection of tributaries, adjacent waters and “other waters,” and the addition of new categorical exclusions for waters that have been covered historically and which can have a significant impact on downstream water quality.
Among other things, our technical comments urge the agencies to leave in place all portions of the existing WOTUS definition that have not been invalidated by the Supreme Court, to remove new definitions and other language that limit jurisdiction in a manner not supported by law or science, remove categorical exclusions that are not supported by law or science, and to rely on all valid jurisdictional tests for categorically protecting waters to the full extent permissible under the Commerce Clause. While we agree that waters with a “significant nexus” to TNWs, Interstate Waters and Territorial Seas should be jurisdictional, we do not agree that these are the only “other” waters that should be protected under the CWA.
A strong, scientifically-grounded new rule is particularly important to clean water protections and restoration efforts in SW and West-Central Montana because, as a headwaters region, a substantial proportion of waterways are intermittent, ephemeral, constitute ditches, and/or are hydrologically linked to groundwater. In particular, ditches are an important water vector in Montana, regardless of whether they are manmade or scientifically natural tributaries, and therefore we strongly argued that EPA’s new rule should clarify that ditches are categorically covered by the CWA when they otherwise meet the definition of a “water of the United States,” including specifically a tributary.
Furthermore, fully extending CWA protections to upstream waters benefits Montana’s fisheries! Our trout depend directly on cool, clean flows from upstream headwaters. Unfortunately, some parts of EPA’s proposal could limit trout protections under the Clean Water Act by categorically exempting certain types of water. That’s one key reason why we submitted our technical comments urging EPA to use proven science in determining appropriate, upstream and headwater protections. Protecting upstream waters and wetlands is a key mechanism for protecting Montana’s downstream blue ribbon trout fisheries!
As the only organization dedicated exclusively to protecting and improving water quality in SW and West-Central Montana, we rely directly on sound science and protections grounded in the federal Clean Water Act. A strong, scientifically-grounded rule that properly protects Montana’s waters (including headwaters, intermittent streams, ephemeral streams, tributary ditches and adjacent waters) is key to our unique outdoors culture, rural traditions, and strong local communities!