Marias River flows out of Tiber Dam

The Marias River flows out of Tiber Dam southwest of Chester. The Bureau of Reclamation’s Montana reservoir is the heart of the Rocky Boy/North Central Montana Regional Water System.

Larry Mayer, Billings Gazette

BISMARCK, N.D. – Thirteen states led by North Dakota filed a lawsuit Monday challenging an Obama administration rule that gives federal agencies authority to protect some streams, tributaries and wetlands under the Clean Water Act.

North Dakota Attorney General Wayne Stenehjem said the "Waters of the U.S." rule by the U.S. Environmental Protection Agency and the Army Corps of Engineers is a "federal power grab" that is "unnecessary and unlawful and will do nothing to increase water quality."

The rule – a response to calls from the U.S. Supreme Court and Congress for the EPA to clarify which smaller waterways are protected – was published in the Federal Register on Monday and takes effect Aug. 28.

According to the EPA, the waters affected would be only those with a "direct and significant" connection to larger bodies of water downstream that are already protected. It says the aim is to protect the waters from pollution and development and to safeguard drinking water.

The EPA did not immediately respond to questions from the Associated Press.

The lawsuit, filed in federal court in Bismarck, asks for the rule to be thrown out. The other states involved are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.

Republicans in Congress, and some Democrats including North Dakota Sen. Heidi Heitkamp, also have backed legislation to block the rules.

Stenehjem told reporters that the rule "illegally" gives authority to the EPA and the Corps and will add "red tape and other obstacles" to farmers, ranchers and landowners. Failure to get permits under the new rules will result in "steep penalties and even jail time," he said.

He said farmers and other landowners could be subjected to federal oversight for even dry ditches on their land. The thousands of small ponds in the Upper Midwest known as prairie potholes also will be regulated, he said.

Stenehjem said North Dakota took the lead on the lawsuit because of its large agricultural sector, "so it just seemed like a logical place."

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