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Proposed EPA rule raises concern: N.D. farm groups, ag commissioner warn of EPA overreach with water rule

BISMARCK — North Dakota farm leaders called on the U.S. Environmental Protection Agency on Tuesday to withdraw a proposed rule to clarify the Clean Water Act or at least extend the public comment period, warning the rule could have deep impacts on farmers and ranchers.

“I am appalled by EPA’s bold overreach and attempt to exert their authority over all the waters of the state,” state Agriculture Commissioner Doug Goehring said at the Capitol, joined by representatives of eight farm organizations.

The EPA and U.S. Army Corps of Engineers released the proposed rule March 25 to clarify which streams and wetlands are protected under the Clean Water Act, which was passed in 1972 to control water pollution. The protections had become confusing and complex after U.S. Supreme Court decisions in 2001 and 2006, the EPA said.

The proposed rule clarifies that the Clean Water Act protects most seasonal and rain-dependent streams, as well as wetlands near rivers and streams. Other types of waters with more uncertain connections downstream will be evaluated on a case-by-case basis, the EPA said.

North Dakota Farmers Union President Mark Watne said the proposed rule “leaves a lot of unanswered questions” and raises concerns that the EPA and Corps of Engineers will have regulatory authority over more types of water.

“It appears almost all wetlands could fall under their jurisdiction,” he said.

North Dakota Farm Bureau President Doyle Johannes warned that the EPA’s effort “will impact every aspect of our lives, from normal farming practices to our urban neighbors who mow their yards and how our local schools drain water off their football fields.”

Goehring, a Republican, said the EPA is using hydrology and its definition of “significant nexus” waterways to widen its jurisdiction over wetlands, ditches, floodplains, seasonal streams, ponds and other waters.

“They would have limitless powers to dictate land-use decisions through shallow connectivity,” he said.

Specifically, Goehring said the proposed rule would require farmers to obtain a pollution discharge permit “for almost every acre” on which they plan to apply herbicides, pesticides or fertilizer.

The North Dakota Department of Agriculture is asking the EPA to withdraw and reconsider the proposed rule or at least extend the 90-day comment period, which ends Thursday for the interpretive rule for agricultural activities and July 21 for the overall proposed rule, Goehring said. A letter to the EPA was expected to go out as early as Tuesday, he said. Goehring and the farm group leaders encouraged farmers and others to submit comments to the EPA.

John Sandbakken, executive director of the Mandan-based National Sunflower Association, said many farmers are still in the fields because of the late spring and haven’t had an opportunity to digest the EPA proposal.

“I think it would be really unfair to those growers” not to extend the comment period, he said.

Democrat Ryan Taylor, a cattle rancher from Towner who is running against Goehring in the November election, said Tuesday he agrees the EPA’s proposed rule would negatively affect the state’s farmers and landowners. He said it must be studied and understood so it can be modified to the state’s benefit or challenged, “and make sure that we can do both things — have clean water and have a functioning ag economy.”

Taylor, a McHenry County commissioner, said the proposed rule also would affect local governments by potentially requiring federal permits for ditches, which could delay road projects.

Other groups represented at Tuesday’s news conference were the North Dakota Grain Growers, North Dakota Agriculture Association, North Dakota Corn Growers Association, North Dakota Stockmen’s Association and North Dakota Soybean Growers Association.

Reach Mike Nowatzki at (701) 255-5607 or by email at

Mike Nowatzki

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