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ND officials say EPA's proposed Waters of the U.S. rule is 'unworkable'

BISMARCK, N.D. -- State government leaders said they are finalizing comments urging two federal agencies to withdraw a proposed rule that Gov. Jack Dalrymple said would "drastically expand" federal authority over North Dakota waters.

BISMARCK, N.D. -- State government leaders said they are finalizing comments urging two federal agencies to withdraw a proposed rule that Gov. Jack Dalrymple said would "drastically expand" federal authority over North Dakota waters.

The proposed "Waters of the U.S." rule released March 25 by the U.S. Environmental Protection Agency and Army Corps of Engineers is "unworkable" for the state's farmers, ranchers, landowners and business community, Dalrymple said during a press conference Thursday at the Capitol.

"It will have a large and damaging effect on our ability to manage water development in the state," he said.

Agriculture Commissioner Doug Goehring asked the EPA in June to withdraw and reconsider the proposed rule or at least extend the comment period past July 21. The EPA has since extended it twice, to Oct. 20 and now Nov. 14.

Goehring called the proposed rule a "power grab" by federal agencies that would force farmers and ranchers "to get a permit for just about everything." North Dakota's major farm groups also oppose the proposed rule.

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The proposed rule 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, which was passed in 1972 to control water pollution.

But Dalrymple said the agency has "failed miserably" to clarify the act, which he said made it clear that jurisdiction lies with the states as long as they follow federal guidelines.

"It implies that we have somehow fallen down on the job," he said.

Dalrymple said the rule would expand EPA authority to include virtually all surface water, including ponds and dry ditches. The EPA claims the proposed rule doesn't change existing practice regarding farm ponds and won't extend its jurisdiction to ditches that are made from dry land, that drain dry land and that don't flow year-round.

Attorney General Wayne Stenehjem and his counterparts from 10 others states, including South Dakota, sent a letter to the EPA and corps on Oct. 8 outlining their legal arguments against the rule, which he said unlawfully and unconstitutionally seeks to assert federal control over water and land management.

Stenehjem said the federal agencies "need to reverse course immediately" and replace the proposed rule with a "far more narrow, common-sense alternative."

If the rule isn't withdrawn or severely modified, "They can count on litigation," he said.

The state departments of Health, Commerce and Transportation and state Water Commission also were represented at Thursday's press conference.

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Dave Glatt, chief of the Health Department's environmental health section, said the EPA is looking at ways to start regulating areas that typically have been handled by the state, such as prairie potholes and groundwater.

"And so that, for us, provides a lot of concern of where does that go next," he said. "The clarity just isn't there."

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