Conservation groups in Montana criticized President Donald Trump for directing federal agencies Tuesday to roll back a rule implemented under the Obama administration that expanded the scope of waters falling under the federal Clean Water Act.
They argued Trump’s move is a backward step that could lead to pollution of seasonal streams and wetlands.
Business and farm groups, who viewed the Obama-era rule as federal overreach, unnecessary and burdensome, agreed with Trump’s executive order.
Here’s the issue:
In April 2014, the EPA and the U.S. Army Corps of Engineers proposed the Clean Water Rule, which defined the scope of ‘‘waters of the United States” or, in other words, what type of waters were under the jurisdiction of the Clean Water Act and the federal government.
Under that rule, which was finalized in 2015, smaller streams and wetlands were considered waters of the United States and therefore under the jurisdiction of the act.
The changes were proposed in response to U.S. Supreme Court cases.
In 2006, a majority court opinion said intermittent and ephemeral streams have significant connections to navigable waterways and should be covered under the Clean Water Act. Intermittent streams flow seasonally. Ephemeral streams flow underground at some points.
Those are important distinctions for a state such as Montana where 48 percent of stream miles within native trout historical range are classified as intermittent or ephemeral, said David Brooks, associate director of conservation for Montana Trout Unlimited.
Before the Clean Water Rule passed under the Obama administration, regulations under the Clean Water Act would not have applied to an intermittent or ephemeral stream “despite the fact it is not a dried up creek.” With protections provided by the Clean Water Rule, developers must minimize impacts before dumping fill material into a stream, according to Trout Unlimited.
Trump’s executive order directs the agencies to use former Supreme Court Justice Antonin Scalia’s minority opinion in the 2006 case. That opinion said seasonal streams are not navigable and therefore do not merit protection under the Clean Water Act, Brooks said.
Without federal regulations, “stuff can be dumped in them. There can be point sources of pollution,” Brooks said.
“The rule is based on solid science, expands on previous exemptions for agriculture and others while also helping protect headwater streams that contribute the essential flows and spawning habitat that supports much of our $950 million-a-year sport fishery,” said Bruce Farling, executive director of Montana Trout Unlimited, adding he was disappointed by the executive order.
The rule does not affect longstanding permitting exemptions for farming, ranching and other specified activities.
However, U.S. Sen. Steve Daines, R-Mont., said in a news release that the rule sought to regulate virtually “every ditch and pond that may be occasionally wet across the United States.”
As written, Daines said, it will have a significant negative impact on farmers, ranchers and landowners.
“We can protect Montana’s pristine water without harming our agriculture economy and violating Montanans’ private property rights,” Daines said.
Nicole Rolf, director of the Montana Farm Bureau, said the group is opposed to the Clean Water Rule because it extends federal jurisdiction to most water.
“We hope that any replacement will take into consideration the concerns of Montana’s farmers, ranchers and others who safely utilize our resources to provide food, fiber, and other products and economic activity to our country,” Rolf said.
Revisions also are supported by the Montana Stockgrowers Association, Montana Grain Growers Association, Montana Wool Growers Association and Montana Chamber of Commerce.
“EPA’s Waters of the United States rule would give the federal government authority to regulate waters not previously subject to regulation, including those in the prairie pothole regions of Montana,” said Tom Butcher, president of the Grain Growers.
The executive order says it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty and showing due regard for the roles of the Congress and the states under the Constitution.
The Clean Water Rule remains in effect.
Trump’s executive order directs the Army Corps of Engineers and the EPA to review the rule and “rescind or revise, or publish for notice and comment proposed rules rescinding or revising.”
Mark Fix, a cattle rancher from Miles City and a member of the Northern Plains Resource Council, said in a news release that the executive order will weaken the Clean Water Act and allow more water pollution. Fix has worked to strengthen water pollution standards after a coal company dumped salt-heavy water into streams that fed his main irrigation source, the Tongue River.
“The Clean Water Rule protects drinking water and agricultural water by protecting seasonal waters and headwater streams from pollutants,” Fix said. “By doing so, it ensures clean water for our farms, families and livestock.”