I’m standing on the bank of Rattlesnake Creek in Missoula, close to where it joins the Clark Fork River. The future of this creek and scores more across the state is in question in a new way now that President Donald Trump has issued an executive order. It seeks to overturn the so-called "Waters of the United States" rule that President Obama established in 2015.
Before we get to the specifics of the Waters of the U.S. rule, let's step back to the bigger federal law that it's a part of: The Clean Water Act of 1972.
"It was really in response to some pretty massive environmental degradation," says Michelle Bryan, a professor at the University of Montana law school.
"Congress concluded two-thirds of waters of the United States were not swimable and fishable."
In response, Bryan said, Congress passed the Clean Water Act so that the federal government could regulate America's "navigable waterways."
But, defining what a navigable waterway is isn’t so simple. Rattlesnake creek, for instance, would be hard to navigate even a kayak much of the year, and its upper reaches? They’re only wet in spring and early summer.
Protecting creeks like this one has been a vexing problem for Congress and federal agencies since the 1940s, says Montana Attorney General Tim Fox.
"And of course we can all agree that we want to keep our water resources clean, but reasonable people can disagree as to what jurisdiction the federal government might have, and the Waters of the U.S. rule took a very expansive reading of what navigable waters means."
Fox says the Obama administration's Waters of the U.S. rule went too far, requiring federal development or pollution permits for activities that happen anywhere there's a streambank, whether or not water actually flows in them. In 2015, Fox joined Montana to a lawsuit with a dozen other states to block the rule.
"The opponents, when they saw this rule come out and said, 'whoa, this is an expansion.' That’s incorrect," says Bruce Farling.
Farling is the head of Trout Unlimited in Montana. He likes Obama's Waters of the U.S. rule. He says it's important to protect seasonal streams that aren’t necessarily wet all year:
"Cutthroat trout, in our state, move into intermittent tributaries in some of our mountain ranges to spawn when there’s water. The little fish come out of the gravel when there's still water, move down into the mainstems where there's water year round, then the tributary dries up. But they use those."
Farling says it's ironic that some agricultural groups and developers fought so hard to overturn President Obama’s attempt to clarify what the Clean Water Act regulates. After all, he says, for years they complained that whether activities near a given stream needed a permit depended on who reviewed their application. Some agencies and offices were very strict, others interpreted the law more loosely. And that, Farling says, is why some see Obama's Waters of the U.S. rule as an expansion of federal regulation.
"And the reason is because the agencies, the EPA, the Army Corps of Engineers, and in the case of Montana, the Montana Department of Environmental Quality, which oversees the federal Clean Water Act here, they hadn’t necessarily been enforcing the Clean Water Act on all of these waters in the past," says Farling.
Confusion over Clean Water Act enforcement resulted in the U.S. Supreme Court trying to sort it out at least three times between 1995 and 2015.
"And that’s where it gets rather complicated," according to UM Law Professor Michelle Bryan.
Bryan says a central challenge for the courts – and everyone else involved in protecting clean water is, "the difficulty with imbuing the law with science."
"The Trump administration wants strict limits on the regulation of areas connected to flowing waters that are not actually wet all the time," Bryan says. "Places like wetlands and adjacent streambeds or seasonal waterways. People who like the Obama Waters of the U.S. rule say science shows that areas with less obvious connections to year-round waterways need protection."
Trout Unlimited’s Bruce Farling:
"If this rule is shot down, and we go to the interpretation that the opponents want, we’re going to be able to fill in all these tributaries of the Milk River, the Yellowstone River, the Poplar River, the Tongue River, the Powder River. It will really affect the majority of the stream reaches in Montana.
"Mr. Farling may have loved the Waters of the U.S. rule, unfortunately the majority of people in Montana didn't," says Montana Attorney General Tim Fox.
"I've never seen people unite behind an effort to undo a federal rule like I did the Waters of the U.S. Whether it be agriculture, municipalities, legislators, all of the statewide elected officials that I'm aware of said it was a bad idea," Fox says. "That said, those who disagree with that should be heard in Congress, and allow Congress to know and understand their positions."
While Congress could try to explicitly define which "waters of the United States" should be subject to federal regulation, the effort is currently being taken up by the Trump administration. The President’s executive order to undo the Obama administration rule doesn't mean it just goes away overnight. The White House will have to follow the National Environmental Policy Act to replace the rule. That’s a process that requires lots of input from and back and forth with the public, it’s expected to take years. Meanwhile, the Obama administration's Waters of the U.S. rule remains suspended by the courts.