‘Waters of the U.S.’ redefined after 2015 rule challenged by states
New WOTUS rules could be a win for ranchers,trouble for conservationists
EDITOR’S NOTE – This is the first of a two-part series looking at the local impacts of the WOTUS rule changes. Part II will be printed next week.
MADISON COUNTY—In December, the Environmental Protection Agency (EPA) and Army Corps of Engineers proposed a new rule clarifying the term “waters of the United States,” as defined in the Clean Water Act (CWA) of 1972.
“Waters of the U.S.” has been redefined several times, the most recent of which occurred in 2015. But that definition was soon challenged by Montana and 12 other states, including neighbors Idaho, Wyoming, North Dakota and South Dakota.
The states filed a lawsuit in the District Court of North Dakota alleging that the new terminology violated certain provisions in the CWA, 1969’s National Environmental Policy Act (NEPA) and the Constitution itself.
At the time, Montana Attorney General Tim Fox called the rule an “example of a federal agency acting by decree to bypass Congress and violate rights of states reserved under the law and the U.S. Constitution.”
So, what changed in 2015?
In that iteration of the rule, “waters of the United States” included wetlands, ponds, lakes, oxbows, impoundments and waters that are “adjacent” to a primary water—such as a designated lake, river, pond or waterway.
But the 2015 rule also included a new definition for the term “neighboring,” expanding it to include any water located within 100 feet of the floodplain of a “jurisdictional by rule” water body.
“Jurisdictional by rule,” simply means all those primary waters—lakes, rivers, streams and ponds, plus designated wetlands.
The 2015 version of “neighboring” also included water located within 1,500 feet of the high tide mark of a primary water; and if any part of a water body fell within that boundary, the entire body became classified as waters of the U.S.
When the states petitioned against the 2015 rule, they did so on the grounds that it broadened the definition of “waters of the U.S.” to place a larger number of water bodies under federal control and management, something that usually falls to the states themselves. That federal jurisdiction could require farmers, ranchers and other landowners to seek new federal permits or risk becoming federally delinquent.
Montana Senator Brad Hamlett (Cascade) cited the Montana Constitution when the states brought the suit against the EPA and Army Corps, which says that “water that falls and flows within the boundaries of Montana belongs to the state for the beneficial use of its citizens.”
“This is not about clean water, it’s about jurisdiction, as Montana being a headwaters state cherishes and protects its waters,” said Hamlett in June 2015. “Knowing the lay of the land and our waters best we definitely, constitutionally and practically need to remain in control.”
New proposed rule
The proposed revisions to the 2015 definition of “waters of the U.S.” are subtle but could have some significant impacts to which water bodies fall under federal jurisdiction and which are subject to state regulations.
Traditional waters defined as “navigable” such as rivers and their tributaries, lakes and ponds, impoundments and wetlands, remain waters of the U.S. as they always have.
Not included are waters that flow “only in response to precipitation,” as well as groundwater, converted cropland, flooded fields used as rice paddies or cranberry bogs, artificial lakes and ponds and “water-filled depressions” created as a result of mining or construction activities.
The EPA wrote in the proposal that the goal of the rewrite was to “establish categorical bright lines that provide clarity and predictability for regulators.”
A particularly complex part of the new rule comes into play where ditches are concerned. Ditches constructed in a tributary or a wetland adjacent to a navigable water. Ditches not included in those categories would be regulated by the state of Montana or by tribal government, depending on their location.
The EPA writes that the new proposal will “recognize and respect the primary responsibilities and rights of states and tribes to regulate and manage their land and water resources.” The proposal was first formalized on December 18 and will remain open for public comment for 60 days, until February 16. After that, the agencies will take comments into consideration before moving forward on the new rule.
Still, until a new rule is formally adopted, the definition of “waters of the United States” established in 1988 is currently in effect in over half the country.
Since 2014, Montana’s U.S. Senator Steve Daines, has been one of the major supporters of the revisions to WOTUS.
In September of 2014, for example, after receiving a letter of support from Montana’s agriculture and ranching groups, the building industry, the Chamber of Commerce, the coal and petroleum lobbies, Daines, then a Congressman, joined a “bipartisan majority” in House of Representatives in passing the “Waters of the United States Regulatory Overreach Protection Act,” legislation that protected Montana electrical cooperatives and the agriculture from what was deemed the EPA’s “federal regulatory overreach” that would have stymied economic growth and threatened property rights.
Daines became a Montana U.S. Senator in 2015, and continued his fight against WOTUS Clean Water Act rules. In June that year, he co-sponsored the Federal Water Quality Protection Act, which directed EPA and ACOE to issue a revised WOTUS rule protecting traditional navigable water from water pollution, while also protecting farmers, ranchers and private landowners. Later that month he lauded the lawsuit that Montana Attorney General Tim Fox and 12 other states filed against EPA and ACOE over the new WOTUS regulations.
In October, he introduced “The Regulatory Authority Clarification Act” that provided another tool to restrict and define agencies’ broad rulemaking ability.
“Montanans know far too well the cost of Washington’s top-down, unchecked ability to issue broad and burdensome regulations,” Daines stated. “This legislation is a good step towards reducing the costly red-tape that hinders the growth and stability of hardworking Montana businesses. It’s far past time to rein in overbearing regulations and give Montana families, business owners and taxpayers the relief they deserve.”
In 2016, Daines voted for U.S. Senator John Hoeven’s (R-ND) bipartisan amendment to the Energy and Water Appropriations Bill that would have blocked the WOTUS rules, and furthered a bill in the Senate’s Committee on Appropriations that would have nixed the implementation of WOTUS rules.
When President Donald Trump took office, and sought to nix President Obama’s executive actions on WOTUS, Daines lauded this effort, saying, “Today marks the beginning of restoring private property rights while protecting our environment. Out of state D.C. bureaucrats shouldn’t impose regulations that hurt Montana farmers, ranchers and landowners.”
Most recently, in December of 2018, Daines, chairman of the Senate Western Caucus, along with Caucus members Senators Jim Inhofe, Lisa Murkowski, Joni Ernst, John Barrasso Pat Roberts, Jeff Flake and Jon Kyl, applauded the Trump administration’s rewrite of WOTUS rule, saying the new EPA rule more narrowly defines waters of the US to focus on “truly public waterways.”
“The Obama WOTUS rule took federal government overreach in rural America to absurd new levels,” Daines said. “Maybe the Obama administration should have spent more time focusing on economic growth and protecting the homeland rather than trying to regulate farm puddles. As chair of the Senate Western Caucus, I applaud the Trump administration for rewriting this rule so that it applies to actual public waterways and no longer does harm to farmers and ranchers.”
Montana’s other U.S. Senator, Jon Tester, approached WOTUS in a slightly different fashion.
“I am happy to work with folks to address concerns they have with the proposed rules to protect our clean water,” Tester said.
“When WOTUS was originally proposed, I worked with Montanans to secure significant changes to ensure it worked for Montanans. We need certainty that guarantees farmers, ranchers and all Montanans have access to clean water. Near the top of every farmer and rancher’s wish list is certainty. We need a common sense final rule that does not change every time we have a new president. Farmers and ranchers have too much work to get done without having to worry about changing guidelines coming out of Washington, DC after every election.”
Tester believes landowners, farmers and ranchers would use common sense about water on their lands.
“No farmer, rancher, or angler wants to put Montana’s clean water at risk,” he said. “That’s why I support voluntary clean water initiatives like EQIP and CSP to the Land and Water Conservation Fund. Montana is lucky to have the sort of locally-grown conservation proposals we do, and I’m happy to work to make sure agencies work with folks on the ground to see this ideas become reality.”
He also supported the rights of landowners to handle their property.
“I strongly support the rights of landowners, including their right to not have their water contaminated by upstream users. Montana’s economy is directly tied to clean air and clean water. My family has farmed the same land for over a century, but we are just stewards of that land and it is our responsibility to do what is best for future generations. If landowners take actions that pollute waterways, it has an impact on downstream users. Even local governments have zoning regulations to protect neighbors’ private property beyond fence lines.”
Conservation efforts, Tester says, are best accomplished with collaboration.
“When it comes to conservation, collaboration is king. That’s why I met with people from all walks of life when the Waters of the U.S. rule was being drafted, and why I’m working to make sure landowners have access to conservation programs to support their decisions on their own land.”
“But we also need some back stops. There are places in Montana where the water has to be treated in perpetuity because the water is contaminated. Actions that take place on private land can have a significant effect on downstream users. As a landowner, I don’t want those above stream contaminating water before it flows through my property.”
“If the federal government overreaches,” he continued, “I will take it head on. But decisions that impact the livelihood of our kids and grandkids, like access to clean water, must be made with data and science. You don’t have to look any farther than the people downstream of the Berkeley Pit to see how critical clean water can be.
“When the Waters of the U.S. rule was being proposed,” Tester said, “I met with landowners, farmers, ranchers, sportsmen and to gather their input and deliver it to Washington, DC. I will continue to stand up for common-sense policies that meet the needs of Montanans while also fighting back when regulations don’t make sense for working folks, small businesses, farmers, and ranchers.”
Montana’s Congressman Greg Gianforte mirrored Daines’s sentiments.
“President Obama’s Waters of the U.S. mandate further empowers federal bureaucrats in Washington and threatens our Montana way of life, particularly for our farmers and ranchers. Obama’s WOTUS mandate absurdly expanded the EPA’s jurisdiction to tie up Montana landowners in red tape over ditches, puddles, and agricultural ponds,” Gianforte said in an email reply to questions from The Madisonian.
“The Trump administration’s proposal to revise WOTUS will roll back federal overreach, clarify the federal government’s jurisdiction, and return power to states and tribes to manage their waters. The administration’s proposal will reduce uncertainty and help Montana’s farmers and ranchers.”
“The proposal to revise WOTUS will end years of uncertainty about where federal jurisdiction begins and ends. The proposed revision will help Montana landowners understand whether a project on their property will require a federal permit, without requiring them to spend tens of thousands of dollars on engineers and lawyers.”
When asked if he could see any issues in terms of the conservation of clean water, Gianforte punted to his earlier comments, saying, “The new rule will give Montana farmers and landowners clarity on what qualifies as a wetland and is subject to regulation under the Clean Water Act.”