EPA water rule blasted, praised

Republican lawmakers from Montana criticized a new federal water rule unveiled Wednesday to protect streams and wetlands, arguing it would put undue regulation on farmers and ranchers.

But sportsmen said wildlife would benefit from cleaner water, and the state’s Democratic senator, the Senate’s sole working farmer, said the rule is improved from the original proposal and urged federal agencies to conduct more outreach to explain it.

The Environmental Protection Agency and U.S. Army Corps of Engineers said the rule, meant to prevent pollution in streams and rivers, will better define what waters already are subject to federal jurisdiction under the Clean Water Act, making permitting less costly, easier and faster for businesses and industry.

Specifically, the Clean Water Rule will clearly define and protect tributaries that impact the health of downstream waters, according to the EPA.

To be regulated under the new rule and warrant protection, a tributary must show physical features of flowing water — a bed, bank and ordinary high water mark.

The Clean Water Rule will be effective 60 days after publication in the Federal Register.

U.S. Rep Ryan Zinke, R-Mont., called on the Senate to block the rule, calling it a “water grab” by the EPA that would stifle the state’s economy with little benefit for the environment.

The House previously passed the Regulatory Integrity Protection Act 261-155, which would require the EPA to withdraw the rule. Zinke voted for the measure.

Montana farmers, ranchers, homebuilders and local governments oppose the EPA rule because they contend it would expand EPA’s jurisdiction to include ditches, isolated ponds and other seasonal waters, increasing federal regulation on private property, Zinke said.

The rule could make basic farming procedures like weed control and fertilizer application impossible, Zinke said.

“It is absolutely unacceptable that the EPA is bypassing Congress and the people to implement regulations that will be carried out by unelected bureaucrats who have never been to Montana and don’t know the difference between Bozeman and Billings,” Zinke said.

The EPA, however, said the rule focuses on streams and would not regulate most ditches, which are used by farmers and ranchers in Montana to transport water to crops and supply cattle.

It does not cover groundwater, shallow subsurface flows, tile drains, irrigation policies or water transfers.

The Clean Water Rule is historic step for clean water that would protect streams and wetlands from pollution, the agency said.

“Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea-level rise, stronger storms, and warmer temperatures — which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses,” EPA Administrator Gina McCarthy said in a statement.

About 117 million Americans, or one in three people, get drinking water from streams that lacked clear protection before the Clean Water Rule, the EPA said.

Activities such as planting, harvesting and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule preserves those exemptions, the EPA said.

Federal agencies also said the Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act.

Protection for many of the nation’s streams and wetlands has been confusing and complex as the result of Supreme Court decisions in 2001 and 2006, prompting the rule, the EPA and Army Corps of Engineers said.

Sen. Steve Daines, R-Mont., also criticized the rule, calling it an example of federal overreach and a threat to Montana’s agriculture and natural resources industries, jobs and water rights.

“By expanding the EPA’s powers to regulate virtually any spot across the country that is occasionally wet, this new rule has the potential to cripple Montana’s agriculture and natural resources industries, hurt Montana jobs and threaten Montanans’ property rights,” Daines said.

U.S. Sen. Jon Tester, a Democrat who operates an 1,800-acre farm near Big Sandy, said the rule is an improvement over the original proposal, and was influenced by comments from the public including Montanans.

The final rule provides more clarity that it won’t impact ditches that only flow when it rains, and it sets clear limits on how far the Clean Water Act protections can extend to nearby waters, Tester said.

It also precisely defines a tributary.

Tester said he spoke with the EPA’s McCarthy Wednesday and encouraged the EPA to improve its outreach to those with questions about the new rule.

“For rural economies to thrive, this rule needs to protect habitat and our drinking water, and it needs to be fair for agriculture,” Tester said.

Missoula-based Backcountry Hunters and Anglers said the rule would enhance critical fish and wildlife habitat and restore clarity to a bedrock natural resources law.

“The rule will conserve resources important to our fish, our wildlife, our citizens — and to the waters and wetlands that are central to our national identity,” BHA Executive Director Land Tawney said in a statement.

Reach Tribune Staff Writer Karl Puckett at 406-791-1471, 1-800- 438-6600 or kpuckett@greatfallstribune.com.