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ICYMI: In North Dakota visit, EPA chief vows new Waters of the US definition to 'stand the test of time'

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In North Dakota visit, EPA chief vows new Waters of the US definition to 'stand the test of time'

The Bismarck Tribune
By Jack Dura
October 7, 2019

BISMARCK — Environmental Protection Agency Administrator Andrew Wheeler during his visit to Bismarck on Monday, Oct. 7, heard plenty of praise for his effort to replace the 2015 Waters of the U.S. rule with a "common-sense" definition.

Wheeler and U.S. Sens. John Hoeven, R-N.D., and Kevin Cramer, R-N.D., led a discussion involving 30 state, industry and agriculture leaders about replacing the Obama-era rule criticized as federal overreach of control over small waterways, especially wetlands or prairie potholes, which are prevalent on North Dakota's landscape.

Environmental groups have criticized the Trump administration’s action, arguing that polluted smaller waters could impact the quality of larger waterways, damaging the environment and impacting safe drinking water.

Wheeler called the 2015 rule "the biggest power grab on the environmental side in Washington, D.C., probably in the history of environmental regulations."

"Just to show you how all-encompassing it was, they felt the need in 2015 to put into the regulatory text that puddles were not waters of the U.S.," Wheeler said. "And if you have a definition that is so encompassing that you have to in regulatory text exclude puddles, that should have been a telltale sign that their definition was too broad."

He said he wants a new WOTUS definition consistent with the Clean Water Act of 1972, one that withstands legal challenges and "will stand the test of time."

North Dakota Attorney General Wayne Stenehjem led a multistate coalition challenging the 2015 rule in federal court. Though the Trump administration rescinded the rule in September, Stenehjem said the case is far from moot.

"We can't declare victory on the battlefield till it's over because I worry that the other side is going to come in and try to prohibit the administration from repealing the 2015 WOTUS rule and it will come back zombielike from the dead and we'll have to contend with it," said Stenehjem, a Republican.

Cramer called the 2015 rule "particularly challenging" and "egregious" but praised Stenehjem's and others' efforts to "step up and take a lead role in fixing it."

The amount of "traditionally navigable water" under federal jurisdiction in North Dakota would have gone from 5,100 linear miles to 85,604 linear miles under the 2015 rule, according to state Agriculture Commissioner Doug Goehring, a Republican.

Wheeler said a new WOTUS definition will be finalized this winter. He said the proposal outlines six main categories of federal waters, including "traditional, navigable waters," their tributaries, certain ditches used for navigation or affected by tides, certain lakes and ponds, impoundments and wetlands adjacent to any of those waters.

Excluded are features that only hold rainfall, groundwater, agriculture ditches and water treatment facilities, according to Wheeler, who hopes a new rule will relax property owners' concerns of federal authority.

"They need to understand what the law is," he said, "which is why my overarching goal to my staff in drafting our new definition is that a property owner should be able to stand on his or her property and be able to tell for themselves whether or not they have a federal water without having to a hire an outside consultant or attorney to tell them, 'We're not near a federal waterway.' "

"Common sense, right on," Hoeven said.

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