- 03.31.2023
Bozeman Daily Chronicle: Tester, Daines back resolution to overturn federal water rule for Montana
Montana’s Democratic Sen. Jon Tester joined four other colleagues in crossing the aisle to vote against the Biden administration’s new Waters of the United States rule this week.
On Wednesday, the Senate passed a joint resolution under the Congressional Review Act to invalidate the WOTUS rule, which went into effect in 48 states last week. Montana Republican Sen. Steve Daines also voted for the resolution, which cleared the House earlier this month and now heads to Biden for review.
The WOTUS rule — which defines the waterways falling under federal Clean Water Act regulations — has been a subject of controversy in Congress and the courts for years.
At heart of the issue is if non-navigable waterways, like wetlands and streams that only flow for part of the year, should be subject to federal regulation. The rule also codifies two tests into law to determine the jurisdiction of waterways, and includes several exemptions to agriculture land.
The EPA and other groups that support of the rule say protecting all kinds of waterways is necessary because they are all interconnected.
But opponents — the most vocal of which are agriculture groups — have said not knowing which waterways are regulated or not will create costly delays for the industry.
Tester said the threats posed to Montana’s agriculture economy are why he opposed the new WOTUS definition.
“After listening to Montana farmers, ranchers, and other stakeholders, it’s clear this rule isn’t right for Montana,” Tester said in a statement.
“Clean water is simply too important to our state’s economy and the health of our communities to get this wrong, and the Biden Administration needs to go back to the drawing board to deliver a rule that better supports Montana’s agriculture economy and protects our environment,” Tester said.
Tester’s vote is a departure from his support of the Obama-era WOTUS rule in 2015, which similarly put non-navigable waterways under federal regulation. A Tester spokesperson said the new WOTUS rule is significantly different from the Obama-era rule.
Daines, who joined his Republican colleagues in introducing a Senate version of the resolution last month, said in a statement that the senate vote was “a victory for Montana’s farmers and ranchers.”
“WOTUS infringes on the rights of Montana farmers, ranchers and landowners and creates confusion and burdensome red tape; Montanans shouldn’t have to answer to the federal government over minor issues like ditches on their property,” Daines said.
The new WOTUS rule, which has been in effect in Montana for less than two weeks, returned federal regulations to nearly half of Montana streams that provide habitat for native trout, other fish and aquatic insects.
Those are streams that only flow for part of the year. But they’re still important because if they become degraded and backfilled with soot, it impacts the natural filtration ability and habitat quality of larger rivers, said Guy Alsentzer, director of environmental nonprofit Upper Missouri Waterkeeper.
Those protections could soon be lost, as groups look to Congress and the courts to invalidate the rule.
Republican Reps. Ryan Zinke and Matt Rosendale, also voted for the Congressional resolution opposing WOTUS when it was in the House. Gov. Greg Gianforte has denounced the rule.
Now, the resolution heads to Biden’s desk. The president has already pledged to veto the measure, saying that undoing the new WOTUS definition would only create further uncertainty and hurt local economies.
Congress could undo Biden’s expected veto with a two-thirds majority, but margins in both chambers are insufficient to override it.
Opponents argue it’s the rule itself that brings uncertainty for water users.
Cyndi Johnson, president of the Montana Farm Bureau Federation, said in an interview the rule creates ambiguity because farmers and ranchers here “won’t know how many hoops you have to jump through” to use a water source they’ve accessed for decades.
“It’s a concern to all of us in agriculture because we live in a state where there are all kinds of small natural drainages that occur when it rains and snows,” Johnson said. “Is that drainage subject to federal oversight? Maybe. Under the new rule, we don’t know.”
There are eight exclusions noted in the WOTUS rule, including cropland converted prior to 1985, dryland ditches, waste treatment systems, and artificial lakes and ponds for things like stock watering.
But other agriculture waterways where jurisdiction is unclear could face tests and federal regulation if determined they impact water quality downstream.
Pending Biden’s veto, the congressional challenge is still just one facet of opposition to the WOTUS rule.
Earlier this month, a federal judge granted an injunction to the rule for Texas and Idaho after they sued to stop its implementation.
Montana has joined 24 other states in another suit against the EPA. The case, which was filed in North Dakota, has yet to be heard. There are two additional lawsuits in other states, all asking for the rule to be overturned.
The WOTUS rule will also be weighed by the Supreme Court, which is set to decide Sackett vs. EPA before summer. That case will decide the scope of federal authority under the Clean Water Act. If Sackett prevails, that will essentially invalidate the rule as written.