NewsMontana News


Montana groups oppose Trump administration’s cut to clean water protections

Middle Fork Flathead River
Posted at 9:41 AM, Jan 24, 2020
and last updated 2020-01-24 16:20:36-05

MISSOULA — The Trump administration has rolled back federal clean water protections that could affect much of Montana’s water, prompting opposition from environmental groups.

Andrew Wheeler, Environmental Protection Agency administrator, announced on Thursday that his agency would reduce federal pollution protection for certain streams and wetlands. He made the announcement while speaking at the National Association of Home Builders show in Las Vegas.

“All states have their own protections for waters within their borders, and many regulate more broadly than the federal government,” Wheeler said. “Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states.”

The Trump administration has discussed changing the rule for the past year, and 14 states have already sued the EPA on the grounds that the agency is rejecting the science it has applied for years.

“We saw it coming, but we’re still pretty disappointed. It puts the interest of the few – namely big industry – above the interest of the many,” said Andrew Gorder, Clark Fork Coalition attorney.

The primary change is a rollback of Obama administration pollution limits that extended mainly to wetlands and ephemeral streams.

Obama’s limits were put in place in 2015 after two Supreme Court rulings pointed out gray areas in the definition of “waters of the United States.” A wetland that connected or had a “nexus” to a stream was to be protected, but what constituted a nexus?

The Obama rule provided more clarity, but businesses and the agriculture and mining industries argued it went too far. Some farmers worried it would allow the EPA go so far as to regulate water in irrigation ditches that were seen as a nexus. So the Montana Farm Bureau Federation defended its members, even though the rule tried to exempt irrigation ditches.

Now, the Trump administration has eliminated all protections for waters other than large navigable rivers, tributaries, lakes and ponds and major wetlands.

“This isn’t just a reversal of the Obama era policy – it really reverses EPA’s practices dating all the way back to the enactment of the Clean Water Act,” Gorder said. “The EPA has always applied protections to both ephemeral and intermittent streams so long as there was a connection or “nexus” to a downstream waterway. They looked at whether there’s going to be downstream impacts to traditional waterways like the Clark Fork River.”

Because Montana is an arid headwaters state, the rule removes protections from many of our streams. Montana contains 307,000 miles of small, intermittent or ephemeral streams as opposed to 58,200 miles of perennial streams, according to the Montana Department of Environmental Quality. About half are ephemeral or intermittent so now the state would be responsible for those.

But, even though Montana has a decent water quality program compared to some other states, its protections for ephemeral streams don’t go as far as the EPA’s.

Other states have it worse, particularly in the South where state protections are minimal, said Blan Holman, Southern Poverty Law Center senior attorney. The rule could eventually devastate parts of South Carolina that depend on coastal wetlands to protect communities from flooding, because an acre of wetland can store up to a million gallons of floodwater.

“This opens the door for those wetlands to be destroyed. We’re losing our defenses right where we need them most,” Holman said. “When you lose federal protection, these states that are unable to protect the waters for their people are going to be competing with each other.”

Holman said the rule also failed to take climate change into account, because it bases protections on a “typical” water year. But climate change is causing drought and flooding to be so erratic that it’s impossible to define a typical year.

“We’ve been having a lot of atypical years in the South,” Holman said. “It’s so short-sighted in a program that’s supposed to be about protecting the environment and people’s health. This is about ideologues who are trying to re-engineer the Clean Water Act to fit their ends and not considering the science and policies that are part of the Act itself.”

Little streams and wetlands lead to bigger streams, so pollution can work its way down to where it can affect people. An estimated 117 million Americans depend on streams for their drinking water, so they may need to install more expensive water systems to deal with contaminants.

“It passes the buck to downstream users when you talk about municipal water supplies,” Gorder said. “It might save costs for upstream individuals who want to discharge to these streams, but somebody’s got to pay to clean up the water once it goes downhill.”

Montana Conservation Voters executive director Aaron Murphy said outfitters, anglers and recreationalists might see their livelihoods and hobbies affected.

“Around 170,000 miles of rivers, wetlands and waterways in Montana are now under tremendous threat. Anglers, hunters and conservationists across the state cannot take our clean water for granted and this latest attack endangers our health and our outdoor way of life for generations to come,” Murphy said in a statement.

In a press call Thursday, House Transportation and Infrastructure Chairman Peter DeFazio, D-Ore., said the water in Willamette River outside Portland, Ore., is drinkable and fishable and people swim in it, thanks to pollution controls established by the 1972 Clean Water Act.

But he can still remember when it was basically an open sewer, and he doesn’t want American rivers to return to what they were in the 1960s.

“We had the so-called assistant administrator for the (EPA) Office of Water Dave Ross before our committee last year, and I repeatedly asked him, ‘How many miles of stream will be impacted by this? How many acres of wetlands will be impacted by this?’ And he kept saying ‘We don’t have that data,’” DeFazio said. “How can you promulgate a rule when you don’t know what the impacts are going to be?”

DeFazio said the Trump rule now leaves half of the nation’s wetlands unprotected. That would include much of Montana’s 2 million-plus acres of wetlands.

Collin O’Mara, National Wildlife Federation CEO, said the rule didn’t bode well for wildlife either, so more lawsuits and maybe a Congressional Review Act hearing to consider nullifying the rule could follow.

“All kinds of tools are in play because of the egregious nature of this,” O’Mara said. “At a time when we have a 29 % decline in bird populations and one-third of species are in trouble, I think we’ll be hearing from people on the Hill. This flies so far outside the bounds of any reading of the (Clean Water) Act. We anticipate aggressive oversight hearings.”

Gorder said the Clark Fork Coalition was still trying to assess all the damage the new rule could do, but in the meantime, it would encourage its members to contact their Congressional representatives to oppose the rule.

“The bottom line is protecting Montana’s clean water and this rule doesn’t do that,” Gorder said.

Contact reporter Laura Lundquist at