FARGO, N.D. — West Virginia has taken the lead on a lawsuit filed in North Dakota against the EPA and its interpretation of what falls under the waters of the U.S. rule.
The Biden administration announced its definition of waters of the U.S., or WOTUS, in late December and it is set to take effect March 20.
Critics of the definition say it is too broad, making it impossible for farmers, property developers and other industries to know what waters are regulated under the Clean Water Act.
A news release from West Virginia Attorney General Patrick Morrisey said co-leaders in the suit are Georgia, Iowa and North Dakota. The lawsuit includes 24 states in all, including South Dakota, Montana and Nebraska.
The suit, which also names the United States Army Corps of Engineers as a defendant along with the Environmental Protection Administration, was filed in U.S. District Court in Fargo on Thursday, Feb. 16. Morrisey held a news conference in West Virginia .
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The lawsuit says the new definition “embraces vague standards with little justification and minimal consideration of costs.”
“This is yet another attempt from unelected bureaucrats to expand their own authority by broadly defining Waters of the United States,” Morrisey said in a news release.
North Dakota, under then-Attorney General Wayne Stenehjem, took the lead on the issue when states challenged the President Barack Obama-era rule. In 2015, a court sided with the state, keeping that definition from being used.
An attempt by the Trump administration to more narrowly define WOTUS through the Navigable Waters Protection Rule also was thrown out by the courts, leaving the EPA and Army Corps of Engineers to go back to the pre-2015 rule, with a few updates to reflect Supreme Court rulings.
In a letter to current North Dakota Attorney General Drew Wrigley, North Dakota Agriculture Commissioner Doug Goehring encouraged Wrigley to lake the lead on the lawsuit and criticized the new WOTUS rule.
“North Dakota must file its own lawsuit, and not rely on other States, because of the many unique issues facing our State,” Goehring wrote in the letter dated January 13.
In an interview Friday Goehring said he was comfortable with West Virginia taking the lead and North Dakota's success against Obama administration is part of why the lawsuit was filed in North Dakota.
He noted that North Dakota is unique with bodies of water such as prairie potholes that only hold water at certain times.
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“It is actually much worse and more damaging to North Dakota’s ranchers, farmers, and energy producers than the 2015 Obama EPA WOTUS Rule, which North Dakota became the first state in the country to stop,” Goehring wrote in the letter to Wrigley.
Goehring said the state mapped what would have been covered by the Obama rule and with buffer zones around sometimes wet areas such as ditches and ravines, it would have given federal agencies jurisdiction over 86% of North Dakota, what he said was a clear indication of federal overreach.
"It takes away the state's ability to manage their own water clear back in areas where there is no water," Goehring said.
While it is an agricultural issue, he said it affects almost all real estate, such as housing and commercial developments or infrastructure projects such as roads, transmission lines and pipelines.
Wrigley and the attorney’s general’s office did not immediately respond to a request for a comment on the lawsuit.
The new WOTUS definition also has been challenged in court by the American Farm Bureau Federation and other agriculture and industry groups.
On Feb. 2, Sen. Shelley Moore Capito, R-W.Va., sponsored a Congressional Review Act resolution to rescind the Biden administration’s final rule to redefine WOTUS. All Republican senators signed on as co-sponsors.
Kale Van Bruggen is an attorney who specializes in water and drainage issues with the Rinke Noonan Law Firm out of St. Cloud, Minnesota.
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“I think the agencies really missed a chance to use some bright line rules and definitions, and have given us just more things that are undefined and haven’t been commented on or fully vetted,” Van Bruggen said in an interview.
The Biden administration also has been criticized for not waiting for a ruling from the Supreme Court on Sackett vs. EPA, a case that will likely affect how the WOTUS definition can be interpreted.
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