BISMARCK - North Dakota and 12 other states were filing a request Monday to stop a new federal water rule from taking effect Aug. 28, arguing it will infringe on their sovereignty by expanding federal jurisdiction over state waters.
The motion for a preliminary injunction aims to stop the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers from implementing their “Waters of the U.S.” rule until a judge can hear the states’ lawsuit, filed in June in U.S. District Court in Bismarck.
The states argue that the rule will place a “significant hardship” on them by increasing the cost, timing and complexity of getting federal permits for infrastructure projects.
Among those supporting that argument is Duane DeKrey, general manager of the Garrison Diversion Conservancy District, which has spent more than five decades and millions of dollars on a plan to channel Missouri River water to eastern North Dakota’s Red River Valley.
In a declaration filed with the states’ motion Monday, DeKrey wrote that the rule “immediately threatens” the Red River Valley Water Supply Project.
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The rule will require additional federal permits and studies, in part because the project’s pipeline runs through North Dakota’s prairie pothole region, and those small bodies of water would be under federal jurisdiction until proven otherwise, he wrote.
DeKrey, a former Republican state lawmaker, also warned of “dire economic consequences,” estimating that applying the rule threatens more than $2 billion per year in economic injury on the Red River Valley during drought conditions. Even a delay in the project could cost more than $20 million per year in increased construction costs, he wrote.
“If the WOTUS Rule goes into effect … Garrison Diversion, the State, and numerous cities, rural water systems and residents will be irreparably injured due to the lack of State control over state water resources and the significant threatened harm to many communities in eastern North Dakota, including the large population centers of Fargo and Grand Forks,” he wrote.
The EPA says the rule clears up confusion - resulting from Supreme Court decisions in 2001 and 2006 - on which streams and wetlands are protected under the Clean Water Act, making it easier for businesses and industry to understand.
Wayde Schafer, conservation organizer for the Dacotah Chapter of the Sierra Club, said the organization is “very supportive” of the rule because it clarifies which waters are protected. He questioned whether the state’s opposition is a “knee-jerk reaction to the EPA rather than just looking at the rule.”
“From what I’ve seen of the rule, those fears are largely unfounded. It’s not every puddle. It’s not every ditch,” he said.
The EPA and Corps have until Aug. 24 to respond to the injunction motion. North Dakota Attorney General Wayne Stenehjem said he hopes the judge will grant a hearing on it that week, before the rule takes effect.
Joining North Dakota in the lawsuit are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota and Wyoming, along with two New Mexico state agencies.
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The states also are asking the court to deny the federal agencies’ request to stay the lawsuit while a judicial panel considers consolidating it with other lawsuits across the country challenging the rule.
