NewsMontana AG Network


Montana Ag Network: Navigating language in Waters of the United States

water quality bitterroot
Posted at 8:16 AM, Sep 21, 2023


It’s been a fight for centuries and it will continue to be a fight for years to come.

In December of 2022, the EPA and Army Corps of Engineers repealed a rule that defined the “navigable waters of the United States.”

WOTUS, or Waters of the United States provides what Montana Agriculture producers say is “unclear” jargon to what the Army Corps of Engineers has control over.

“I can tell you that there was a ‘Waters of the U.S. (Rule)’ that came out during the Obama administration. It was put into court. It was. And then there, Obamacare. Biden came out with a ‘Waters of the US’, all based on a court decision years ago that said we need to figure this out because it's not working. I don't think the Biden rule is a very good one,” explained Senator Jon Tester, the only Democrat in Montana’s Congressional delegation.

It was a ruling that was challenged in the Supreme Court in the case of Sackett v. EPA. The Ninth Circuit, in that case, affirmed that a ditch on Mr. Sackett’s property was a “Water of the United States” and the Circuit ruled in favor of the EPA.

“The references in the 2023 rule to significant Nexis, as well as narrowing some of the other definitions. Now, that was important because we've long said that significant Nexis is much too ambiguous of a of a parameter to justify whether it’s a Water of the US or a Water of the State,” explained Nicole Rolf, Senior Director, for Government Affairs of Montana Farm Bureau.

The previous verbiage could rule a pond or low-lying land feature to be placed under the supervision of the US Army Corps of Engineers—a threat to Montana whose influence on waters goes beyond federal control.

“We have state jurisdiction over water as well. We have a lot of things in place to maintain water quality and to manage the water quantity.” Rolf added.

Republican Congressman Matt Rosendale says before it was overturned, this was a government overreach.

“This is a battle that we're going to have ongoing for years and years and years and years. We're going to push back on it. And the radical environmentalists are going to push back and try to get control over our property.” He said.

Bi-partisan support is what Montana’s farmers and ranchers will need in the fight the essential element to all life.

“Listen to folks in rural America, listen to folks in urban areas and try to find the sweet spot as possible to do.”

Senator Steve Daines and Congressman Ryan Zinke also oppose federal control over these “low-lying” “ponds” or “puddles.”

“We need to get to a place where the rule is following the law that will protect water quality and protect the users who rely on it,” added Rolf.