PART II ‘Waters of the U.S.’ redefined after 2015 rule challenged by states
WOTUS : Win for ranchers, trouble for conservationists?
EDITOR’S NOTE – This is the second of a two-part series looking at the local impacts of the WOTUS rule changes.
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.
For ranchers like Rick Sandru, the 2015 rule had much less arbitrary-sounding impacts.
“The rule that came out in 2015 had potentially huge impacts for agriculture,” says Sandru. “Little streams that were created by rain or runoff fell under the jurisdiction of the EPA, plus puddles, stock dams and drainage ditches. Things farm and ranch people work with on a daily basis would have required permitting.”
Sandru has a small creek on his ranch that he uses for water, plus many of the puddles, stock dams and drainage ditched he references. For someone who neglected to go through the necessary permitting avenues under the 2015 rule—whether by choice or by lack of awareness of the rule change—they could be slapped with enormous fines.
“Without getting those permits you’d be in violation,” he says. “In the daily management of your farm or ranch you could very easily come in violation of a rule without even realizing it.” Sandru says those violations can result in fines of $10,000 or even $15,000 per day.
It’s the kind of fine that could easily put small operations like Sandru’s out of business; he simply can’t compete with the federal government on such a scale.
Proponents of the 2015 rule argued that it would promote cleaner water and hold water-using parties to a higher standard of water quality, but Sandru doesn’t think the loosening of the definition will cause any harm to Montana’s water quality.
“Montana already has some of the most stringent water quality rules,” he says. “Out here we’re not causing any big water quality problems.”
In October 2015, once the states had brought their suit against the EPA and the Army Corps, a district court judge agreed that th definition created a “burdensome expansion” exceeding the authority of those agencies.
In Sandru’s opinion, avoiding the institution of the 2015 rule shows better consideration of the voices of local ranchers and landowners.
“The new administration actually listened to agriculture more, so they implemented the concerns of agriculture into this new rule,” he says. “It’s going to keep us out of the regulatory hassle.”
The court halted the implementation of the 2015 rule, beginning a long process of rescinding and rewriting that began in 2017. An applicability date was later added to the 2015 rule, meaning that it cannot go into effect until February of 2020—an effort to give the agencies involved enough time to fully flesh out the alternative legislation.
The first step in the process was repealing the old rule, which was done after public comment periods in 2017 and 2018. The agencies then wrote up a replacement rule, which opened for public comment and received nearly 800,000 submitted comments via, regulations.gov, the online database that the collates public comments in federal decision making.
Though the Trump administration has long-since touted the benefits that protection rollbacks would bring to independent landowners, farmers and ranchers who have been held back under previous legislation, Montana conservationists argue that the push to deregulate may have far more to do with rhetoric than with recompense.
“A lot of the promotion behind this proposal has been centered around the idea that the existing regulations are causing harm and undue stress to the agricultural community,” said David Brooks, executive director of Montana Trout Unlimited (TU). TU is a statewide grassroots organization dedicated to the conservation and restoration of cold-water fisheries.
“The problem is that when you go back and look at the Clean Water Rule of 2015, you realize pretty quickly that that simply isn’t the case. There are very clearly designated exemptions within the language of that legislation that were incorporated specifically to protect the rights of private landholders. This rollback is not about protecting farmers and ranchers. It’s about removing some of the barriers that currently stand in the way of unmitigated sprawl and development.”
As the rule is currently written, those looking to “discharge dredged or fill material into the waters of the United States, including wetlands,” are required to obtain a permit before legally being allowed to do so.
Existing exemptions currently include “established (ongoing) farming, ranching, and silviculture activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices,” the “construction and maintenance of irrigation ditches,” the “construction and maintenance of farm or stock ponds,” and the “construction and maintenance of farm and forest roads, in accordance with best management practices” among others.
“There was a tremendous amount of planning and many years worth of research and compromise that went into drafting the 2015 rule,” said David Chadwick, executive director of the Montana Wildlife Federation. “It’s very frustrating to have to sit back and watch this whole smoke and mirrors show about saving the family farm from federal interference when what we’re really talking about is paving the way for free-rein development. There is a lot at stake here. Some of these proposed rollbacks could have serious lasting consequences on the national water supply, but people are willing to overlook that because of information that is essentially coming out of a well-executed public relations campaign by the administration.”
Of particular concern to conservation groups, Brooks said, is a section of the new proposal that would seek to eliminate both the existing permitting process and some of its current conditional requirements.
“Right now, there is nothing in the legislation that bars development,” Brooks said. “That’s a very common misconception. As things stand today, if you want to fill, divert or change an existing water source, you have to apply for a permit so that the EPA, your state and the Army Corps of Engineers can understand your project and look at any potential ramifications. These permits are usually granted, but there might be some mitigation required in some cases to make sure that a water source is not irrevocably damaged.”
Common types of Clean Water mitigations, Brooks said, range from streambed remediation projects to contributions for wetlands restoration efforts in other areas.
“It’s really rare that these permits get denied, but it makes sense that there should be some sort of checks and balances system in place,” he said. “Again, these provisions were not put in place as a way to ban development, but rather to make sure that we’re not giving up control over one of our most important natural resources.”
According to information provided by a White House financial analysis report released in conjunction with the proposed revisions, more than 248,675 federal Clean Water permits were issued between 2011 and 2015. On average, mitigation was required about 990 times per year.
In states like Montana where water is already scarce, Chadwick said, unregulated alterations to even small water sources could lead to major challenges down the line.
“Part of what they’re attempting to do here is to redefine what constitutes a protected water source,” he said. “Under these new proposals, seasonal wetlands and ephemeral streams (a stream that flows only briefly during and following a period of rainfall or snowmelt in the immediate vicinity) would no longer be granted the same protections that they are now. These are pretty essential resources in Montana, especially when you consider them as headwaters to larger streams or bodies.”
Montana, Chadwick said, is one of the only states in the US that can rely on its headwaters to serve as hatcheries for trout and other fish.
“Almost anywhere else you go, you’ll see these big trucks coming in to stock the rivers with fish,” he said. “We don’t have to do that because until now, we have been able to manage our own headwaters. If these regulations pass and we no longer have any way of knowing what sort of fill might be getting dumped into our wetlands areas, that could very easily change.”
Headwaters notwithstanding, Chadwick said, Montana’s wetlands are in and of themselves an invaluable resource that should be protected at all costs.
“Wetlands are some of the most biologically diverse systems on the planet,” he said. “Even seasonally, they offer up nesting and foraging opportunities for a huge number of birds and animals and make it possible for countless species to thrive. We have already lost too many of these places --we have to do whatever we can to protect the ones we have left.”
In terms of the greater Montana eco-system at large, Brooks said, any action that could prevent these headwaters from connecting to other lakes, streams or rivers could result in widespread complications.
“Everything that happens in the wetlands ultimately happens downstream,” Brooks said. “Yes, obviously that means that there’s a natural correlation – what happens to the fish happens to the birds happens to the predators and so on – but there is a quality of life factor here that needs to be considered as well. Many of these headwaters eventually flow into potable sources that we depend on to sustain our communities. This is all connected, and it’s very important that we don’t lose sight of that.”
In speaking more to a general quality of life, Chadwick noted that residents in the local area could see “some major, but not necessarily positive” changes in the wake of the proposed revisions.
“If you go out and look at the growth that’s currently happening between Bozeman and Three Forks, you’ll see exactly where the majority of these permit applications are coming from,” he said. “People chose to live in Montana, to stay here, because it affords a certain lifestyle. If these revisions pass, you’re going to see a lot more construction and a lot more development in areas that are already experiencing a ton of strain. Growth is important, no one is arguing that fact, but when you look at how quickly some of these communities are already changing, there has to be some consideration to long-term impact.”
Though the long-term environmental ramifications of the proposed WOTUS protections rollbacks are still in a fairly speculative phase, Brooks noted that, without question, the revisions would undoubtedly set conservation efforts back by more than 50 years.
“This would be the largest rollback since 1972,” Brooks said. “Between an increase in seasonal unpredictability, climate change and rapid development across the state, Montana is already facing an uphill climb in terms of preservation and protection. If these revisions are passed, however, we won’t be climbing up the hill anymore. We’ll be climbing up a mountain.”