More than half of Montana’s waterways gain renewed, federal protection after ‘Waters of the United States’ rule is thrown out

BOZEMAN - On Monday, August 30, a federal judge rightfully abandoned Trump’s Dirty Water Rule that eliminated Clean Water Act protections for thousands of waterbodies, determining the rule could lead to “serious environmental harm.” This ruling affords more than 50 percent of Montana’s waterways necessary protections that were lost under the Trump Administration’s decision to gut the extent of clean water protections.

“Tossing out Trump’s Dirty Water Rule and restoring protections to headwaters, wetlands, and ephemeral and intermittent waterways is a huge win for Montana’s rivers, wildlife, and communities that depend upon clean water, especially during this time of extreme drought” said Guy Alsentzer, executive director of Upper Missouri Waterkeeper. “We are encouraged that all of Montana’s connected waters are now legally protected and look forward to the Biden administration’s revised rule.”

Trump’s Navigable Waters Protection Rule wrongfully redefined “waters of the United States,” disregarding best available science on wetlands and streams entirely, regardless of their effect on downstream rivers and lakes. In Montana, the vast majority of our headwaters are made up of intermittent and ephemeral streams that only flow in response to snowmelt but are hydrologically connected to and sustain downstream mainstem rivers with cool, clean flows. Trump’s rule rollback disqualified more than half of Montana’s surface waters from federal legal protections that maintain water quality and protect aquatic habitat from degradation and pollution and allowed polluters to freely contaminate our smaller-order streams that provide a quarter-million Montanans with clean drinking water. The consequences of the Trump rule were thus particularly draconian for Montana, especially given that the Montana DEQ is legally prohibited from implementing pollution controls more stringent than the federal law corollary.

The court ruling this week means EPA and the Army Corps of Engineers revert to implementing a 1986 regulation as interpreted by the 2008 guidance written by the George W. Bush administration to determine what qualifies for federal protection as “waters of the United States” under the Clean Water Act. The reestablishment of the role of science in the scope of “waters of the United States” decision making is critical to protecting the health of Montana’s waterways. With increased nutrient pollution from poorly treated wastewater, explosive sprawl development in our river valleys resulting in wetlands being bulldozed and the proliferation of poor septic systems, not to mention climate change threatening clean and resilient water supplies, the restoration of federal protections is a welcomed first step in protecting Montana’s cold-water fisheries, wildlife populations, and a $7.1 billion outdoors economy that all depend upon cold, clean water. 

Upper Missouri Waterkeeper has been fighting in federal court over three different iterations of “WOTUS” rules since 2014, arguing for the strongest, science-based regulatory interpretation of clean water protections for our headwaters. Waterkeeper remains the only nonprofit organization in Montana using science and the law fighting political rule rollbacks and championing the importance of science-based protections for the Missouri’s headwaters.

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