A Supreme Court decision curbing the EPA’s power to regulate wetlands drew a quick response from Montanans engaged in water quality issues Thursday.
Conservation groups called the ruling a blow to the clean water regulations in an arid state where a majority of waterways don't flow year round and wouldn't be regulated.
Property owners said the decision signaled an end to their concerns about the EPA further expanding its reach on what could be regulated under the Clean Water Act.
At issue was an EPA policy known as “waters of the United States,” which prior to Thursday’s court ruling EPA interpreted as empowering the agency to regulate water quality on wetlands that didn’t have a continuous surface water connection with navigable waters. Justices unanimously ruled that water bodies without that continuous connection were beyond EPA’s regulatory reach. The agency had previously recognized the connectivity between wetland and waterways that was not only seasonal, but also through the soil, perhaps never surfacing.
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“We’re not even talking about hydrologic connectivity anymore. What we just got out of the United States Supreme Court is essentially a ‘if you can’t see it, it doesn’t exist, test,” said Guy Alsentzer, executive director of Upper Missouri Waterkeeper.
Upper Missouri Waterkeeper is probably best known for its work to repair the degrading water quality of the West Gallatin River, which has suffered five straight years of algal blooms in its upper reaches where growth in the resort community of Big Sky has affected water quality. This month, EPA designated the upper portions of the West Gallatin as impaired, too unhealthy for aquatic life and recreation.
“The thrust of this case history was essentially an ideologic push from the private property rights community saying ‘we don’t want the federal government doing anything to control how we develop on things that are upland and not directly adjacent to a perennial waterway. And that’s the whole thrust,” Alsentzer said.
An arid, headwaters state, Montana has roughly 840,300 wetland acres, or about .9% of state area, according to U.S. Fish and Wildlife. The impact of the Supreme Court decision is better understood in the context of how many Montana streams don't flow continuously, some 63% according to EPA. The quality of those water bodies is still important to wildlife and the environment.
The case before the Supreme Court centered on an Idaho couple, the Sackett family, building a home near Priest Lake on land that that had to be filled in to avoid water issues. The EPA identified wetlands on the couple’s lot and proceeded to regulate the development using the Clean Water Act.
Alsentzer said the biggest impact of the court ruling centered on water quality harmed by development. Property owners would no longer have to be mindful of water quality when dealing with wetlands disconnected from perennial waterways. Preservation would go out the window. He said the ruling wouldn’t impact agriculture, which already benefits from several exemptions.
But agriculture groups did submit friend of the court briefs in the Sackett vs. EPA case. The National Cattlemen’s Beef Association concern centered on the “significant nexus” test, which is to say the EPA’s ability to determine whether the relationship between a wetland and perennial waters warranted enforcement without a continuous surface water connection. NCBA argued that it was difficult for landowners to know if there was a significant nexus, with potential criminal consequences in play if they didn’t take appropriate action. The group’s attorney, Mary-Thomas Hart, explained the matter in an audio recording following the ruling.
“I think the goal of eliminating the significant nexus test is to provide more regulatory certainty,” Hart said. “So, NCBA wrote an amicus brief to the Supreme Court highlighting a lot of issues with the significant nexus test. One of those issues is the criminal liability attached to the Clean Water Act and attached to violations of the Clean Water Act. NCBA argued to the court that there's no way we can constitutionally hold someone liable for a violation of the Clean Water Act if they're not even aware that they're violating the Clean Water Act. And the significant nexus test was so broad and so vague, that someone could violate the Clean Water Act without even realizing it.”
Montana attorney Hertha Lund, who ranches near Lennep and is also a member of the Montana Stockgrowers Association, said the Supreme Court ruling does away with what’s known as the “glancing goose test,” an issue the justices had decided in landowners’ favor in previous cases.
“They have to be connected,” Lund said of wetlands and adjacent rivers and lakes. That’s what the court concluded Thursday. “If you think about what the glancing goose test is, it used to be that if a goose can fly over your farm and they saw a pothole, that could be a clean water” body regulated under the Clean Water Act. “And according to the test that they got rid of, the significant nexus test, that was much more likely to pass as a prairie pothole under Waters of the United States. The unanimous court said ‘no more to that. Hopefully this whole issue is gone forever.
“At least we have some continuity now. That’s a huge issue. And it certainly affects agriculture because there was always a potential with a significant nexus test that it could be a prairie pothole.”
Across the Eastern Montana prairie, there are watering holes dammed into the subtle creases of the plains, catching whatever moisture falls from the sky or weeps from the earth. There's one about every mile to keep cow calf pairs watered up in regions that often get less than 12 inches of moisture a year, sometimes less. These features pass the glancing goose test of which Lund spoke. The EPA has ruled normal farming activities exempt from regulation, but producers, prior to the court's ruling, frequently expressed concern the rules could someday change.
A flurry of press releases from Republican elected officials followed the Supreme Court decision. U.S. representatives from Montana, all Republicans, have messaged against Waters of the United States for at least 16 years, dating back to former Rep. Denny Rehberg. Press releases Thursday were loaded with hyperbole. Rep. Matt Rosendale suggested that the EPA was using the law to regulate mud puddles.
Gov. Greg Gianforte called the decision, ““A big win for small business owners, farmers, and ranchers, today’s unanimous decision from the U.S. Supreme Court reins in an out-of-control federal bureaucracy. The EPA’s days of trying to regulate potholes and puddles through the Clean Water Act are over. Montana farmers and ranchers are the best stewards of our lands and waters, not federal bureaucrats. Montana will continue to stand against the Biden administration’s federal overreach, and I appreciate the U.S. Supreme Court for its commonsense, unanimous decision.”
Western Montana U.S. Rep. Ryan Zinke said “It should not take 18 years of jumping through regulatory hoops and battling the federal government to build your home. This unanimous SCOTUS decision is a huge win for farmers, ranchers, and current and future property owners in Montana. The Supreme Court made the right decision based on the law. The Court was clear the Biden Administration does not have the legal authority to implement these far-reaching regulations that would allow the EPA to regulate every cow pond and creek in Montana and add thousands of dollars in costs to literally any building project. The Biden Administration has no choice but rescind their unconstitutional federal overreach.”
Eastern Montana U.S. Rep. Matt Rosendale said ““For far too long, The Biden Administration has weaponized WOTUS to expand federal jurisdiction over dry creek beds and mud puddles across the United States. In a major victory for Montana farmers and ranchers, the Supreme Court ruled against this unconstitutional overreach and reaffirmed the rights of private property owners.”
U.S. Sen. Steve Daines said “Today the Supreme Court helped put Montana farmers and ranchers more in charge of the decisions about their own land, ripping it away from unelected Washington bureaucrats. Our farmers and ranchers feed the country and the world and should not have to fear an overbearing federal government making decisions about their land for them. For too long Washington Democrats have depended on the regulatory agencies and the judiciary to force their will on the American people when they could not get their way through the legislative process, and I am glad to see the Court recognize this and right these wrongs.”
The Supreme Court mentioned that states are free to set water quality standards beyond the limits set Thursday on the EPA.
Alsentzer said Montana could be asked to go beyond the EPA minimum in order to protect Montanans’ state Constitution right to a clean and healthful environment.
“Boy, we need to revisit, frankly the lawfulness and the practicality of that law, given that our entire Western wildlife heritage, our water resources, and our way of life is predicated on our clean cold waters, and our in our healthy rivers,” Alsentzer said. “If we're suddenly not allowed to exercise reasonable, straightforward protections to say, ‘look, you have to simply get a permit and make sure that you're minimizing harm before you're allowed to do something. If we're not even going to do that, I guess it's a race to the bottom for water quality, and we're picking winners and losers.”