The North Dakota Attorney General said Friday "it is fair to assume" his state would join a legal challenge to new federal water rules that critics say are a regulatory overreach.
The Obama administration announced the final version of the Waters of the U.S. rule last week, which clarifies what waterways fall under the jurisdiction of the U.S. Environmental Protection Agency. A number of groups and lawmakers have raised concerns that the rule broadens federal authority, with U.S. Rep. Kevin Cramer, R-N.D., calling it an "unconstitutional power grab."
North Dakota Attorney General Wayne Stenehjem said his office is "thoroughly digesting" the final rule.
"I've visited with numerous of my attorney general colleagues who are equally concerned, and we are looking our legal options right now," Stenehjem told the Grand Forks Herald Friday. "And I think it is fair to assume North Dakota, along with other states, will be filing a challenge, but we have to complete the legal analysis."
The EPA said last week the rule more clearly defines what waters are protected under the Clean Water Act, "making permitting less costly, easier, and faster for businesses and industry," a press release said.
"This rule responds to the public's demand for greater clarity, consistency, and predictability when making jurisdictional determinations," said Jo-Ellen Darcy, assistant secretary of the Army for Civil Works.
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Yet members of North Dakota's congressional delegation have argued the EPA is overstepping its authority, and they worry the rule brings uncertainty for landowners. They said Friday they are working on pushing against the rule through legislation.
"This rule is way too important and way too intrusive to not use every possible method to push back and to send the EPA and all of the groups back to the drawing board," U.S. Sen. Heidi Heitkamp, D-N.D., said.
Overreach?
Among the groups criticizing the Waters of the U.S. rule is the North Dakota Farm Bureau. Pete Hanebutt, the bureau's director of public policy, said it "opens up the Pandora's Box."
"Anywhere there is water, the EPA would like to have authority over that water," he said. "So this opens a lot of doors and it becomes a hot, sticky mess for most people, not just agriculture."
The EPA says the rule "only protects the types of waters that have historically been covered under the Clean Water Act." It also "does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains," the agency said.
Still, Cramer said it appeared the EPA had a "preconceived plan to expand jurisdiction rather than clarify it." He also criticized the process under which the rule was developed.
U.S. Sen. John Hoeven, R-N.D., said law restricts EPA's jurisdiction to "navigable bodies of water."
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"The EPA is asserting jurisdiction they don't have," Hoeven said Friday. The rule "creates so much uncertainty," he added.
"It leaves (landowners) in a situation where they don't know what they can and can't do on their own property," Hoeven said.
