Jackley, farmers question new fed rule on water

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Farm Forum

South Dakota farmers and political leaders are raising questions about how new federal regulations on water might hurt state interests and business.

South Dakota’s attorney general said Thursday he’s joined attorneys general in 30 other states in asking federal officials to delay the new Clean Water Act rules that he says would harm the state’s control over its waters and land.

In a news release, Attorney General Marty Jackley said the new rule is set to become effective Aug. 28, defining “Waters of the United States,” under the Clean Water Act. He and 30 other state attorneys general are asking the Environmental Protection Agency and the U.S. Army Corps of Engineers to delay the rule for nine months to allow a host of legal challenges to it.

“I’m concerned that the EPA is overstepping its Congressional authority and that our state will be losing considerable decision-making control over our waters and land use,” Jackley said.

Meanwhile, Doug Sombke, director of the South Dakota Farmer’s Union, said farm leaders’ attempts to help EPA forge the necessary new rules haven’t worked out well so far.

“I was among National Farmers Union’s delegation that met with EPA out in D.C. back this winter about this topic,” Sombke said Thursday. “At the time we were assured they were trying to do everything they could to address our concerns. We felt they needed to make some changes and we tried to show them exactly what they needed to do.”

EPA officials later attended the National Farmers Union convention, “and assured us those changes were coming,” Sombke said. “Well, as everyone can see by looking at the rule, they didn’t go as far as we thought they would, especially for us in the prairie pothole region.”

Jackley said the new rule is being challenged in at least 10 complaints filed by 72 plaintiffs in federal court in eight districts.

Jackley joined 11 states in suing in federal court in North Dakota seeking to have the rule vacated and barring the EPA and the Army Corps from enforcing it. The lawsuit claims the EPA’s new definition of “WOTUS” violates provisions of the Clean Water Act, the National Environmental Policy and the U.S. Constitution.

Jackley and other opponents of the new rule say EPA is taking the opportunity of the high court order to better define WOTUS as a chance to greatly expand federal control of water ways and land.

EPA itself, however, says the new rule only will apply “if a water is going to be polluted or destroyed.”

The new rule will not protect any types of waters that have not historically been covered by the Clean Water Act, interfere with property rights nor will it “regulate most ditches,” EPA says on its website.

“The final rule specifically recognizes the vital role that U.S. agriculture serves in providing food, fuel, and fiber at home and around the world,” EPA says. “Activities like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule doesn’t change that. The Clean Water Rule provides greater clarity and certainty to farmers and does not add economic burden on agriculture.”

Sombke, who represents 14,000 SDFU members in the state, said he understands EPA must, because of a U.S. Supreme Court order, better define what WOTUS means.

“Just throwing this thing out won’t work,” he said. “Even if Jackley and the others are successful, it still doesn’t address the core issue, of following the court order. We will just have to go back and take another stab at it. We have to find some common ground.”