Update: “Waters of the United States” Rule in Montana

For the past 5 years Upper Missouri Waterkeeper has defended the scope of legal protections for headwater streams in Montana, arguing science – not politics – is the lawful baseline.

The federal Clean Water Act is a crucial piece of legislation that protects clean drinking water for millions of Americans and prevents toxic dumping and dangerous contamination of our rivers, lakes, streams, and coastal waters. Under this landmark legislation, all waterways are expected to meet standards for swimmable, fishable waters. However, the Trump Administration has, since it’s first year, made several moves to roll back interpretations of Clean Water Act protections for a large number of wetlands and streams which, in turn, endangers public health and the future of Montana’s unique headwaters.

The most recent move by the Trump Administration eliminated protections for historically protected waterways across the country, including ephemeral streams; many interstate waters; many wetlands; and rivers, streams, lakes, and other waters that do not flow into “Traditional Navigable Waters,” which they define as large bodies of water like the Atlantic Ocean and Mississippi. It also seeks to destroy more than 46 years of legal precedent underlying the legal basis for these protections by adopting narrow, industry-developed theories about the limited scope of federal authority to protect our nation’s waters.

How does this affect Montana’s headwaters?

In Montana, EPA estimates that 54% of the streams have no other streams flowing into them, and that 63% do not flow year-round. This means 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. Not only have countless miles of waterways and hundreds of acres of wetlands lost pollution protection, but this also means polluters are exempt from taking responsibility to clean up their pollution and protect local water quality.

Since the 2015 Clean Water Rule and the follow-up Trump Administration rule rollback in 2016, Upper Missouri Waterkeeper has been the only Montana river-protection conservation organization using science and the law to articulate the “on-the-ground” effects of political rule rollbacks and championing the importance of science in protecting Montana’s critical headwaters.

Currently, we are engaged in a single case pending in the Northern District of California, Waterkeeper Alliance et al v. U.S. Envtl Protection Agency, N.D. Cal. No 3:18-cv-02521, that includes our challenge to the 2015 Clean Water Rule, and we are in the process of amending that case to encompass challenges to both the 2019 Rule Repealing the Clean Water Rule and the 2020 Navigable Waters Protection Rule.

We filed a similar action in August 2015, challenging the initial Clean Water Rule (Waterkeeper Alliance et al v. U.S. Envtl Protection Agency, N.D. Cal. No. 3:15-cv-03927; filed August 27, 2015).  That suit was among many filed around the country in both the federal district courts and the courts of appeals; and like most other litigations, we voluntarily dismissed the earlier suit after the Sixth Circuit asserted jurisdiction over all challenges to the Clean Water Rule under 33 U.S.C. § 1369(b). See In re Clean Water Rule: Definition of Waters of the U.S., 817 F.3d 261, 264 (6th Cir. 2016).  In turn, we filed the above case again in Northern District of CA because the U.S. Supreme Court subsequently held that review of the Clean Water Rule belongs in the District Courts, not the court of appeals (Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 (2018)).  On that re-filing, we also added a challenge to the Trump Administration’s Delay Rule (affecting the enforcement of the Clean Water Act’s new interpretation effective date), however, the Delay Rule has subsequently been held invalid and is no longer in force.

So, what does all this complicated procedural history mean?

It means there are still un-scientific, political based pollution control rules on the books that are undermining both the scope and effectiveness of our nation’s hallmark river protection law in Montana.  Upper Missouri Waterkeeper is 100% committed to staying the course in our Waters of the United States (WOTUS) litigation not only because we are the only Montana-based conservation organization standing up for science and the rule of law, but because the health of the Missouri’s headwaters and fisheries directly depend on the strength and scope of the Clean Water Act.