Area states suing over water rule

Attorneys general from 13 states, including South Dakota, filed a lawsuit Monday challenging the rule defining the “Waters of the United States” portion of the Clean Water Act.

The rule was entered into the Federal Register — a collection of administrative regulations for federal agencies — on Monday.

In a statement sent from Pierre, Attorney General Marty Jackley said the federal Environmental Protection Agency, which teamed with the U.S. Army Corps of Engineers to present the Clean Water Rule, is out of line.

“The EPA is overstepping its congressional authority and seizing rights specifically reserved to the states,” Jackley said. “The EPA is creating uncertainty for our agriculture and business community that needs to have fairness and a degree of common sense in federal regulation.”

One local farmer with a firm grasp of local water history agrees.

Roger Schuller, who has farmed in the Claremont area for more than 40 years, said the lawsuit is a step in the right direction for producers who could potentially be adversely affected by the rule.

The rule, which is set to go into effect Aug. 28, is being touted by the EPA to serve as a mechanism for “protection for the nation’s public health and aquatic resources,” though opponents believe the guidelines are too vague and will potentially take away local control.

Waterways of the U.S. is aimed at preserving streams, tributaries and wetlands under the Clean Water Act, but exactly what constitutes those waterways has been a hot topic of discussion in recent years.

“I applaud Attorney General Jackley for doing this,” Schuller said. “This is a farmer-friendly move, and I think it’s very important. We, as farmers, welcome this lawsuit.”

According to the text of the rule — a 75-page document — a protected waterway can include “wetlands and open waters in nonfloodplain landscape settings” which provide “numerous functions that benefit downstream water integrity.”

In some cases, these waterways can include what the EPA describes as prairie potholes, which are classified as “depressional wetlands (primarily freshwater marshes) found most often in the Upper Midwest, especially North Dakota, South Dakota, Wisconsin and Minnesota.”

Like the producers of northeast South Dakota know, Schuller said, this area has no shortage of such waterways.

“We’re right in the middle of the prairie pothole region,” Schuller said. “The big discussion about this thing is the question of what is considered a pothole. They’re saying that, if something is connected to a navigable waterway, that it falls under their classification and can be regulated.”

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 rule is essentially a response to calls from the U.S. Supreme Court and Congress for the EPA to clarify which smaller waterways are protected.

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

The Associated Press contributed to this report.