ND leads lawsuit against EPA water rule

By Emily Aasand | July 01, 2015

North Dakota Attorney General Wayne Stenehjem joined twelve other states in filing a lawsuit against the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers over the EPA’s new rule defining “waters of the United State” under the Clean Water Act (CWA). North Dakota joins Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota and Wyoming.

In the complaint, the states say the new definition of “waters of the United States” violates provisions of the CWA, the National Environmental Policy Act and the United States Constitution. The new ruling expands and brings numerous isolated bodies of water under the jurisdiction of the EPA and Corps.

“This case involves yet another attempt by the federal government to expand its reach and regulatory authority over issues that are primarily reserved to the states,” said Stenehjem. “This increased regulation means increased permitting requirements where permits [for water] have not been previously required. Due to the high volume in the number of permits, the expected time to obtain a permit will increase. Our citizens cannot afford these costly delays. In addition, failure to get a permit will subject North Dakotans to steep penalties and even jail time.”

The states believe the EPA’s rule wrongly broadens federal authority by placing the management of a majority of water and land resources in the hands of the federal government. Congress and the courts have repeatedly affirmed that the States have primary responsibility for the protection of intrastate waters and land management.

“The EPA is overstepping its Congressional authority and seizing rights specifically reserved to the states,” said South Dakota Attorney General Marty Jackley.

North Dakota holds a unique situation with the copious volumes of water being regulated for hydraulic fracturing usage. In 2012, records indicate that 12,629 acre-feet of surface and ground water were used for fracking purposes, which was 4 percent of North Dakota's 2012 water consumption. 

The report found that most of North Dakota’s water usage, about 56 percent, goes to irrigation, followed by municipal usage at 22 percent, power general usage at 9 percent, industrial (non-fracking) usage at 6 percent, rural water usage at 3 percent and multi-use and bottling commercial and domestic usage at less than 1 percent. 

Hydraulic fracturing has been under fire for the past six to seven years. However, the EPA recently released a report concluding that fracking does not have “widespread, systemic impacts on drinking water.”

“North Dakotans are well-informed on this topic and understand that our state has put in place significant regulations to ensure development is done safely,” said Tessa Sandstrom, communications manager at North Dakota Petroleum Council. “We’ve seen that oil development can be done safely and efficiently. We also recognize that there are impacts and the EPA study acknowledged that as well.”

“North Dakotans care about our water resources and have been protecting these resources as waters of the state and will continue to do so,” said Stenehjem. “This federal power grab is unnecessary and unlawful and will do nothing to increase water quality in our state. It will only burden landowners, ranchers, farmers and local governments.”


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