Unscientific, Politicized Repeal Efforts Put Montana’s Water at Risk

EPA’s New WOTUS Rule Faces Congressional Challenges 

Recent reporting by the Public News Service calls attention to Republicans’ efforts to challenge the Biden Administration’s new “waters of the United States” (WOTUS) rule that clarifies protections for Montana’s waterways under the federal Clean Water Act (CWA). 

In December 2022, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released a new rule redefining the definition of WOTUS which determines which waterways fall under federal CWA protections. Republican senators, including Senator Steve Daines, are now challenging the WOTUS rule through a Congressional Review Act joint resolution of disapproval, a 60 legislative-day window for Republicans to send a new federal agency rule to the President’s desk for formal legislative repeal. Representatives Zinke and Rosendale are among republicans in the House taking similar measures to repeal the new water protection rule.

“Preserving the integrity of Montana’s headwaters is crucial to protecting the health of our mainstem rivers, particularly because these interconnected systems support our state’s vibrant outdoors economy and trophy fisheries,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “Nobody wants to see our waterways become polluted and no longer support sensitive uses that all Montanans value – drinking water, aquatic life, and recreation. The scope of headwaters protections should be based on what science dictates is necessary to protect clean water, not political rhetoric.”

Parallel to the republican WOTUS rule challenges in Congress, the Supreme Court is expected to rule on the scope of protections for wetlands under the pending case in Idaho, Sackett v. EPA. If the court curtails the definition of WOTUS to exclude wetlands and smaller-order streams, a majority of Montana’s streams could lose protections from pollution and degrading land use activities under federal law – an especially troubling prospect given 35% and 40% of river miles assessed in the state are already impaired by nutrients and sediment, respectively, and state agencies have lagged in periodic assessments, much less enforcing pollution controls, for hundreds of miles of waterways across the state.

As a headwaters state for three transcontinental river systems, including the nation’s longest river, what happens in Montana’s waterways has far-reaching effects. Smaller-order streams are the arteries of our mainstem river systems, providing cool, clean flows and vital habitat for wildlife. Best available science has long shown that water quality in Montana’s mainstem rivers is linked to the cumulative land use patterns throughout a watershed, not just what happens adjacent to a river bank. Upper Missouri Waterkeeper supports site-specific evaluations of individual waterways to determine whether jurisdiction under the CWA is necessary to protect water quality and uses of water, not unscientific wholesale exemptions.

Governor Gianforte has also continued a troubling trend of undermining water quality protections by opposing and urging a delay on the implementation of Biden’s WOTUS rule in late January. Montana’s elected officials should be expected to work toward implementing science-based, clean water protections for all Montanans, businesses, ranchers and farmers, fish, and wildlife that depend upon healthy rivers and water quality, not working to help polluters avoid responsibility to protect local waterway health.