Mr. Chairman and Members of the Committee, my name is Guy
Alsentzer, spelled ____, speaking before you today on behalf of Upper
Missouri Waterkeeper, spelled _____, a 501c3 nonprofit water advocacy
organization focused exclusively on protecting and improving water
quality and community health throughout the 25,000 sq mi of
Montana’s Upper Missouri River Basin.
Mr. Mohr invited us today to share our perspective on the EPA and the
Army Corps of Engineer’s new Clean Water Rule. While we could discuss
this topic ad nosium we will focus our comments today on two points.
First, we will emphasize the need for legal clarity on what types of
waters are protected from harm under federal law, and the relevance to
Montana.
Second, we will touch upon several key changes made in the final,
published rule, distinct from the draft shared with the public and states
in 2014, each of which compromise the new Clean Water Rule.
To our first point, the need for legal clarity.
Two U.S. Supreme Court cases - Solid Waste Agency of Northern Cook
County (SWANCC) v. U.S. Army Corps of Engineers in 2001 and Rapanos
v.United States in 2006 – and subsequent guidance issued by the ACOE
and the U.S. Environmental Protection Agency muddied the proverbial
water with differing opinions concerning the scope of protections over
waterways.
Most legal and policy experts believe that these two Supreme Court
decisions and subsequent guidance have left geographically isolated
wetlands, ephemeral streams, and wetlands without the level of Clean
Water Act protection that Congress originally intended.
In Montana, where the great majority of headwaters are ephemeral or
intermittent, and our wetlands are small depressions with infrequent or
absent surface and groundwater connections to permanent waters, the
effects of these decisions could have significant impacts on these critical
areas. In Montana’s semi-arid environment, geographically isolated
wetlands and impermanent streams are often critical refuges, breeding
areas, or food sources for wildlife, and harbor many plant species that
could not survive in the surrounding uplands. Likewise, headwater
creeks provide important flows to downstream rivers, even if for
limited parts of the year.
A recent study in Montana found that over 60% of mapped wetlands,
accounting for close to 25% of Montana’s wetland acreage, may be
geographically isolated within the meaning of these conflicting court
decisions. The same study found that in the central and eastern portions
of the state, more than 60% of streams are ephemeral, flowing only in
response to precipitation, and more than 25% of the streams are
intermittent, flowing for only a few months per year. Even in the wetter,
mountainous regions of Montana, more than 30% of the stream miles
are ephemeral.
Montana does not have a strong regulatory program protecting these
vulnerable resources, instead relying on federal Clean Water Act
provisions largely in the form of permitting decisions by the USACE.
Permit reviews of the USACE indicate that in the span of a single year
several hundred jurisdictional determinations can be made, often
resulting in time-consuming and resource-intensive case-by-case
analyses with dramatically different levels of protection being afforded
water resources.
With this background, we and much of the Nation eagerly anticipated
the new Clean Water Rule because clarifying the differences in legal
interpretations of jurisdiction would create improved permitting in
states and result in more efficient protection of valuable water
resources.
As to our second point – significant flaws in the final Clean Water Rule
that jeopardize clean water and healthy rivers
We believe the importance of the federal Clean Water Act cannot be
understated. This law is the single most important rule for protecting
America’s waters from pollution and destruction, and serves as a model
for clean water legislation around the world.
The statute applies to “Waters of the United States,” a term that
Congress authorized EPA and the US Army Corps of Engineers to define
over 40 years ago. In May 2015, the agencies issued final regulations
colloquially known as the “Clean Water Rule,” which defines the scope
of “Waters of the United States” and determines which types of waters
will be protected by the Act and which will not.
In developing the rule, EPA’s Science Advisory Board conducted an unprecedented, extensive review of more than 1,200 peer reviewed,
published scientific studies to learn how small streams and wetlands
connect to larger downstream water bodies and issued a Report
synthesizing that scientific evidence, and which the new Clean Water
Rule was to heavily rely. Unfortunately, after proposing a version of the
rule in March 2014 – which received extensive public support - EPA
came under intense lobbying pressure from industry and certain
members of Congress to change the rule.
While the final “Clean Water Rule” does provide more clarity on which
waters are covered and maintains protections for navigable waters,
interstate waters and the territorial seas, it excludes numerous
categories of waterways contrary to the peer-reviewed science on which
the rule is purported to be based. Indeed, EPA and the Corps specifically
admit that under the new rule, fewer waters will be protected than
under the prior regulatory definition of “Waters of the United States.”
The new rule narrows the Clean Water Act’s jurisdiction more than is
required by even the most conservative interpretation of Supreme
Court precedent. As a result, the rule will exclude hundreds of
waterbodies across the country, much less Montana, from important
clean water protections without a legitimate legal or scientific basis.
Three tangible examples of the rule’s shortcomings that we can all wrap
our heads around:
 Categorically less protection for tributary streams because of new
definitional limitations such as the presence of an “ordinary high
water mark,” “bed and banks,” and a “4,000’ ” exclusion.
o Many of Montana’s headwater ephemeral or intermittent
streams often lack these features, may not be “significant”
by some measurements, or may be connected by removed
more than 4,000’ ; any waters with those distinctions would
be excluded from protection even though they contribute
important clean water flows to downstream rivers. The new
definitional limitations equate to less protection for
important headwaters, and are directly contrary to best
available science. The Science Advisory Board report clearly
and unequivocally concludes that streams have an impact of
downstream water quality, regardless of size or frequency
of flow, including ephemeral streams that lack an ordinary
high water mark.
 The rule also creates new industry specific exemptions such as
exemptions for certain waters adjacent to agricultural lands,
ditches, ephemeral streams, wastewaster recycling, and
stormwater conveyance systems. The exemptions apply even if
these waters would otherwise meet the definition of a protected
waterway.
o These new exemptions have no basis in existing law or
science, and threaten to exacerbate existing challenges in
addressing diverse sources of pollution to our waterways
by reducing the scope of authority over pollution.
 Groundwater is now categorically excluded from protection, even
if it is possesses a direct hydrologic connection to a nearby
waterway that possesses protection.
o This exemption affects the future of water quality
protections for many of Montana’s growing communities,
particularly those in our high river valleys with alluvial
floodplains.
The gist of sound science, and our organization’s perspective, is that a
water that looks like a waterway, functions like a waterway, and is
connected to a downstream waterway, should be protected from
pollution. The intent of the CWA was exactly so broad: to maintain and
improve the chemical, physical and biological integrity of our Nation’s
waters.
Affording all hydrologically-connected waters protections from
pollution benefits Montana’s downstream users, whether stockgrowers,
irrigators, recreationalists, businesses or municipalities, as well as
supports and sustains our state’s key outdoors-based economy.
NOTES:
Upper Missouri Waterkeeper is a plaintiff in a lawsuit challenging the
new Clean Water Rule because of the consequences of the final rule’s
interpretations.
We are also intervening in the other cases, defending EPA’s authority to
promulgate necessary clean water rules.
As plaintiff’s we are also supporting the DOJ’s motion to consolidate all
lawsuits in the DC Circuit as proper venue. Contrary to the MT Attorney
Generals Office we do not believe that the Dist. Ct is the proper venue
for the instant litigations, and likewise believe that the preliminary
injuction issued by the federal court in N Dakota was an overreach and
should not apply nationwide.