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Many of Montana’s streams and wetlands lost Clean Water Act protections after the Trump administration passed a federal rule in 2020, but those pollution protections were restored following a recent decision by a U.S. district court judge.

An Arizona judge earlier this month ordered the Environmental Protection Agency and Army Corps of Engineers to repeal the Navigable Waters Protection Rule, which went into effect in 2020 under the Trump administration.

Based on 2015 GIS mapping from the EPA, the 2020 rule resulted in the loss of federal pollution protections for over half of Montana’s waterways, said Guy Alsentzer, the executive director of Upper Missouri Waterkeeper.

“Here in Montana, at least 54% of streams have no other streams flowing into them and 63% do not flow year-round,” wrote Quincey Johnson of Upper Missouri Waterkeeper.

“This is a huge victory for our headwaters state, as we’ve been experiencing fisheries collapsing, low water and extreme drought, and more pressure, proving it’s more important than ever to implement science-based decision making at every level,” she wrote.

While some celebrated the court decision, others in agriculture worried that a more stringent definition of WOTUS could result in uncertainty for Montana’s farmers and ranchers.

“We have many areas that are only wet for maybe a few hours, less than a day or a couple of days when the snow melts or when there’s a thunderstorm,” said Nicole Rolf, senior government affairs director of the Montana Farm Bureau Federation. “I don’t think anybody believes that Congress intended for the federal government to regulate those types of features.”

The Trump-era rule redefined “Waters of the United States’’ to mean only waters that have “a relatively permanent surface connection” to large, navigable water bodies like major rivers. Waters that don’t fall under WOTUS don’t receive Clean Water Act protections.

The rule significantly narrowed the scope of the federal government’s jurisdiction over the nation’s waterways. It removed federal protections for streams that flow seasonally in response to precipitation, ditches of all types and upstream wetlands that aren’t directly connected to major water bodies.

Of concern to Rolf were ephemeral low spots between hills that can sometimes fill with water and could be deemed “navigable.” On farm fields with such features, Rolf worries that a more stringent definition of WOTUS could prevent farmers doing normal activities like harvesting crops.

“We think it’s really important to make the point that we’re going to steward the land and the water because it’s in our best interest and because we care about it,” Rolf said. “We can’t have these over-burdensome regulations, not only because it’s difficult for farmers and ranchers, but because if we’re going to feed this country and a good portion of the world, we need to be able to continue to farm and ranch.”

Alsentzer said that in arid, mountainous regions like Montana, including many areas of southwest Montana, streams aren’t running all the time.

Changes to water quality in upper, seasonally-connected ephemeral streams all have the potential to impact water quality in major water bodies. Big Sky, for example, is a subalpine valley with many intermittent waterways, he said.

“If you have a policy saying ‘don’t look at things for their scientific value and do a bare-minimum checklist,’ think about how much that shrinks the ability of our agencies to track what’s happening and how activities are cumulatively affecting our waterways,” Alsentzer said. “In Montana, there are no smoking guns.”

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