Chuck Denowh’s recent guest column, titled “EPA overreach has consequences,” cites the story of a landowner near Basin convicted of violating the Clean Water Act as a “cautionary tale” of federal overreach. The opinion — rife with misinformation and exaggeration — paints the picture of a disabled veteran, unscrupulously persecuted by an army of U.S. Environmental Protection Agency lawyers intent on imprisoning landowners for installing fences and digging ditches.
Sound like it’s not based in reality? That’s because it isn’t.
For starters, the landowner was convicted of destroying sensitive wetlands on both private and federal property that he didn’t own, without any active state or federal permits, after repeatedly being warned that his activities were unlawful by both federal and state officials. But more important than the factual inaccuracies peddled by Denowh, are the equally false notions regarding the underlying purpose of the Clean Water Act and the EPA’s role in carrying out the law as intended by Congress.
The purpose of the Clean Water Act is to eliminate pollution of the nation’s navigable waterways. The act broadly defines the protected navigable waterways as the “waters of the United States.” So, what are the “waters of the United States”? This question has been the subject of controversy since the act was passed by Congress in the 1970s. Congress and the nation’s federal courts have both grappled with the question but had been unable to reach a clear consensus.
Contrary to Denowh’s assertion, the United States Supreme Court itself could not reach a majority opinion on the scope of the federal government’s jurisdiction to protect the waters of the United States. In fact, recognizing that this decision was best left to the agency’s expertise rather than the courts, members of the Supreme Court urged the EPA to conduct new public rule-making to clearly define the waters of the United States. This request was echoed by members of Congress, developers, farmers, state and local governments, energy companies and others.
The EPA then did precisely what it was encouraged to do: conduct public rule-making to clarify the Clean Water Act’s jurisdiction. The result of the EPA’s rulemaking is the 2015 Clean Water Rule, based on years of scientific study, agency review and public input.
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The Clean Water Rule takes a science-based approach to watershed protection, including protections for headwaters, tributary streams and wetlands. This is based on the hydrologic fact that water flows downhill, and upstream pollution will affect connected downstream waters.
The 2015 rule also provided much-needed clarity to the Clean Water Act, identifying which categories of waters are protected under the act and which are exempt. The rule includes a number of exclusions that protect Montana’s agricultural industry and eliminate confusion for landowners, municipalities and small businesses.
The current EPA administration, led by Scott Pruitt, is working steadfastly to dismantle clean water protections that safeguard our drinking water and sustain the lifeblood of Montana’s agricultural and recreational economy. Using short public comment periods and abstract bureaucratic procedures, the administration is attempting to invalidate the Clean Water Rule, making it easier for polluters to degrade our streams and wetlands.
Here in Montana, we understand the value of clean water. Over 100 years of under-regulated mineral extraction has left the state riddled with damaged waterways and burdened taxpayers with millions of dollars in cleanup costs. Do we really want to roll back the laws that protect our clean water and our economy?
A “cautionary tale” indeed.
-- Jory Ruggiero earned his law degree and Master's degree, with an emphasis in aquatic ecology, from the University of Montana. For nearly 20 years, his law practice in Bozeman has focused on representing private property owners whose land and water has been contaminated by corporate polluters.