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ND takes lead in lawsuit against EPA over Waters of the U.S. rule

North Dakota Attorney General Wayne Stenehjem, center, speaks June 29, 2015 at the state Capitol in Bismarck, the state joining attorneys general from 11 other states in a lawsuit against the Environmental Protection Agency and the U.S. Army Corps of Engineers over the EPA's new rule defining "Waters of the United States" under the Clean Water Act. Second from the left is North Dakota Agriculture Commissioner Doug Goehring. Mike McCleary / Bismarck Tribune

BISMARCK – North Dakota and a dozen other states sued the U.S. Environmental Protection Agency and Army Corps of Engineers on Monday over new a clean water rule that critics have slammed as federal overreach that will burden landowners, farmers, ranchers and local governments.

“We’re taking the lead,” North Dakota Attorney General Wayne Stenehjem said of the lawsuit filed in U.S. District Court in Bismarck. “We’re the most agricultural state in the country, so it just seemed like a logical place.”

The lawsuit asks the court to throw out the “Waters of the United States” rule and grant a permanent injunction to prevent it from taking effect Aug. 28. The rule was published in the Federal Register on Monday.

Joining Stenehjem as plaintiffs are attorneys general from Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota and Wyoming, and the New Mexico Environment Department and State Engineer.

The lawsuit claims the rule, which is a response to calls from the U.S. Supreme Court and Congress for the EPA to clarify which streams and wetlands are protected under the Clean Water Act, unlawfully expands federal jurisdiction over state land and water resources beyond the limits set by Congress under the act.

“The EPA is creating uncertainty for our agriculture and business community that needs to have fairness and a degree of common sense in federal regulation,” South Dakota Attorney General Marty Jackley said in a news release.

Stenehjem, a Republican, said the rule usurps state authority over broad swaths of water, subjecting landowners to federal red tape, additional permit requirements and costly permit delays, and steep penalties and possible jail time for noncompliance.

“This federal power grab is unnecessary and unlawful and will do nothing to increase water quality in our state,” he said.

Tributaries to major rivers, “no matter how remote the connection,” will be regulated under the rule, as will all wetlands, ponds, lakes and major waters next to those tributaries, Stenehjem said. That includes waters located in a 100-year floodplain, which will have “a particularly significant impact” on the flood-prone Red River Valley, he said.

Prairie potholes also would fall under the rule, meaning large portions of agricultural land would be regulated “even if they are sometimes or often or almost always completely dry,” he said.

North Dakota Agriculture Commissioner Doug Goehring said the final rule is even broader and more restrictive than as initially proposed in April 2014. He said it leaves many concepts undefined and open to interpretation by agencies and also environmental activists engaging in “sue and settle” tactics against the EPA.

“This is deeply disturbing how EPA has acted throughout this whole process,” he said.

In an email received late Monday night, EPA spokeswoman Monica Lee said that while the EPA can't comment on the lawsuit, the two agencies finalized the rule because protection for many of the nation’s streams and wetlands had been "confusing, complex, and time-consuming" as the result of Supreme Court decisions in 2001 and 2006. She said the rule "ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand."

The agencies held more than 400 meetings with stakeholders across the country, reviewed more than 1 million public comments and "listened carefully to perspectives from all sides" in developing the rule, Lee said.

Stenehjem had no cost estimate for the lawsuit but said states will share the costs. In April, North Dakota lawmakers set up a $1.5 million fund for research and lawsuits related to federal environmental regulations.

The EPA says the finalized rule reduces red tape and provides more certainty about which waters are covered by the act. Critics contend the rule will cover most ditches, but the EPA disputes that.

President Barack Obama has threatened to veto attempts by Congress – including members of North Dakota’s delegation – to roll back the rule.

Gov. Jack Dalrymple, who was out of town Monday celebrating the completion of a new diesel refinery near Dickinson, issued a statement saying attempts to expand federal authority over small wetlands, potholes and other isolated water bodies “is unworkable and a disregard of states’ jurisdictional authority.”

Reach Nowatzki at (701) 255-5607 or by email at mnowatzki@forumcomm.com.

Mike Nowatzki

Mike Nowatzki reports for Forum News Service. He can be reached at (701) 255-5607.

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