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Proposed Federal Water Rule Praised By Industry, Questioned By Scientists

Hans McPherson at his ranch in the Bitterroot Valley.
Nick Mott
Montana Public Radio
Hans McPherson at his ranch in the Bitterroot Valley.

A new federal rule that would roll back Clean Water Act protections across the country opened for public comment last week. If finalized, the rule would abandon enhanced protections the Obama administration proposed for a large portion of Montana’s stream mileage and wetlands.

Hans McPherson’s ranch is a sludge of mud after a few days of winter warmth in the Bitterroot Valley.

Cattle laze about in the sun, and McPherson pulls up on his tractor, finishing up an afternoon of feeding his animals. His family’s been on this property for more than half a century.

I ask him about the equipment he has in a nearby trailer.

"That’s a mixer, and it grinds hay and mixes grain together, and then we add water to it and we make a silage type of feed," McPherson says.

The thing looks to me like an oversized lawnmower blade.

A hay and grain mixer.
Credit Nick Mott / Montana Public Radio
Montana Public Radio
A hay and grain mixer.

Along with the cattle, he raises hogs and chickens. They grow potatoes and other crops too, and he says the farm is particularly known for its sweet corn. And all that takes lots of water to grow. Most of it comes from the Bitterroot River.

"As farmers in the Bitterroot we put our fingers in the water and we put our toes in the soil. And we need that water and we need that soil to grow our crops. It is the lifeblood of agriculture," McPherson says.

This was early January and McPherson only had a couple hours to show me around because he’s packing up to head to the Farm Bureau Federation’s national conference. He’s president of the organization’s Montana branch.

At that conference, President Trump addresseda new federal water rule he claims will make life a lot easier for farmers like McPherson.

"We are going to keep federal regulators out of your — out of your tanks — your stock tanks, your drainage ditches, your puddles and your ponds," Trump says.

The Bitterroot River in western Montana.
Credit Nick Mott / Montana Public Radio
Montana Public Radio
The Bitterroot River.

Many farmers like McPherson say that rule — called Waters of the United States, or WOTUS — will work wonders to get rid of red tape. Environmental organizations and others say it ignores basic science about how water connects, and could pose real threats to waterways across the country.

This new rule is the latest chapter in a decades-long debate over how the U.S. should regulate water pollution.

By the middle of the 20th century, the country was in a bit of a pollution pickle.

"We were having waterways we couldn’t drink, our children couldn’t swim in them, some of them had lit on fire," says Michelle Bryan, a professor of environmental law at the University of Montana Law School.

So in 1972 Congress stepped in and passed what became known as the Clean Water Act.

"Its purposes are to protect the chemical, biological and physical integrity of our nation’s waterways," Bryan says.

But Congress wasn’t specific about which waterways this applied to. Everybody agreed that waters that go across state lines, and waters big enough to float a boat on were covered. But what about streams that only flow part of the time, say, after rain? How far back do we regulate?

This question went to the Supreme Court several times, and the court didn’t agree. In the latest case, in 2006, the confusion was all about how water connects.

Lots of people looked to Justice Kennedy’s interpretation.

"Any water that has a physical, chemical or biological connection that affects a water of the U.S. should be included," Bryan says. 

So, if there was a scientific connection to any of those big waterways, it would be protected.

But Justice Scalia wrote an opinion that was much narrower.

"He created what I would call a visual test. What do we see? If we see a berm or other kind of divider, we may not include that wetland," Bryan says.

In 2015, President Obama released a rule based on Kennedy’s opinion; the science-based one. That rule said things like ephemeral streams and wetlands that were significantly biologically connected to bigger bodies of water — even if you couldn’t see that connection above ground — would have protection. But Montana Attorney General Tim Fox, along with more than 20 other states, filed suit.

The rule never went into effect in Montana. In December, Trump announced a new WOTUS rule, and it was published last week.

It details which waterways are regulated for direct pollution, and for dredging and filling. Bryan says the new rule is based on that visual test — if you can see the connection to bigger waterways. The rule leaves out ephemeral streams, which only run after rain or snowmelt, and wetlands that are close to, but not quite touching bigger waterways.

Farmer Hans McPherson is a big fan of this new rule.

"There needs to be rules and guidelines; there always does. Because there are unscrupulous people, whether they be developers or whether they be farmers, or any type of natural resource extractors. But the rules need to be clear and definite and understandable," he says.

He says profit margins are slim on farms and existing exemptions for farmers aren’t enough. He wants to focus on his cattle and his land, not on regulations.

But what about the science?

Jack Stanford was director of the University of Montana’s Flathead Lake Biological Station for about 40 years.

He’s retired now, so I caught up with him over Skype.

Stanford served on the review committee for an EPA report that provided the scientific foundations for both Trump and Obama’s rules.

"It says that waters of the United States are interconnected from their very headwaters, wherever they may be on the Continental Divide or at some lower elevation, they are connected to waters downstream and the rivers influence the chemistry and biology of those waters all the way to the ocean," Stanford says.

So, for example, here in Montana, pollution could go into a stream that feeds into a tributary of the Flathead River, connects to the Clark Fork, then to the Pend Oreille, then to the Columbia, all the way to its mouth in the Pacific.

"And that’s scientific fact, and it’s also just common sense to me," Stanford says.

For Stanford, ephemeral streams and adjacent wetlands are a crucial piece of this watershed puzzle.

"It becomes for me, sort of a black hole. I feel like I worked my whole career to understand how systems work and document it very carefully, and I’ve never met somebody who would talk to me one-on-one and not agree with me. And yet, all that work seems for naught," he says.

River rocks.
Credit Nick Mott / Montana Public Radio
Montana Public Radio
River rocks.

In eastern and central Montana, about 60 percent of stream mileage is ephemeral and won’t be covered by the new rule. In Western Montana, that number’s about a third of stream mileage.

David Brooks, executive director for Montana Trout Unlimited, says that water can be crucial habitat for trout.

"What that means is, if you’re a developer and you’re doing logging or mining or road-building, you don’t have to have a Clean Water Act permit or abide by the Clean Water Act to do whatever you’re going to do on the landscape, even though it affects surface water," he says.

Montana’s also lost about a third of its wetlands since the 1800s to filling and draining. These areas serve as crucial habitat to more than 100 species of birds, and dozens of species of mammal, reptiles and amphibians. They also filter toxins and regulate floodplains.

According to a 2009 study for the EPA and the state, more than half of Montana’s existing wetlands would not be protected by the standards in the new rule.

Brooks says this isn’t about agriculture at all. An economic analysisreleased with the new rule shows the vast majority of dredge-and-fill permits go to transportation departments, the oil and gas industry, and home developers, not farmers. 

Evan Branosky, program manager for environmental policy at the National Association of Homebuilders, says the new rule is more clear, and makes work quicker and less costly for developers.

"It’s protecting these water features that we all agree need protection, but then also doing it in a way that really helps us to achieve these other social goals, and in our case it’s that access to allowing this big piece of the economy — homebuilding — to continue to occur," he says.

Branosky says regulations account for about a quarter of the cost of a new home, so if we want to take affordable housing seriously, we have to address all this red tape.

But this is a federal rule. What’s this mean for how we take care of water in Montana?

Tim Davis is the water quality division administrator at Montana Department of Environmental Quality. He says from his position, for both the Obama and Trump rule:

"We don’t believe that they significantly affect the way that we in Montana regulate and protect water quality," he says.

When I talked to Davis in early January, he said the state was still reviewing the 253-page federal document. He says the Montana constitution and Water Quality Act lay the groundwork to protect water in the state, including regulating direct discharges of things like, "Odors, debris, oils, scums. That’s one of my favorite words, technical words to use," Davis says.

But he says questions remain about activities that fill, drain and change the flow of waterways. So if you do something like put in a road over a wetland, federal regulations might be more lax.

But he also says the state does a lot of work to protect these bodies of water.

"How do we best balance the needs of agriculture systems and ecological systems? I mean we’re already doing that," Davis says.

DEQ released strategic plans for managing watersheds for feedback last month. When finalized, they’ll inform how the organization deals with water in the state for the next 20 years. This includes a voluntary program that includes incentives for farmers like Hans McPherson to reduce pollutants that wash into the state’s rivers.

Public comment on the WOTUS rule ends on April 15 , but Democrats in Congress are pushing for a longer timeline.

Nick Mott is a reporter and podcast producer based in Livingston, Montana.
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