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Montana, North Dakota, South Dakota, & Wyoming File Lawsuit to Block Clean Water Rule

capitalMontana, North Dakota, South Dakota, and Wyoming are among 27 States involved in a trio of lawsuits that challenges the Clean Water Rule developed by the U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers (USACE). The Clean Water Rule - formerly called the Waters of the U.S. Rule - is scheduled to go into effect on August 28, 2015, 60 days after it was published on the Federal Register. Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Mexico, Ohio, South Carolina, Texas, Utah, West Virginia, Wisconsin are also represented in the lawsuits.

The complaints claim the Clean Water Rule violates provisions of the Clean Water Act, the National Environmental Policy Act (NEPA), and the U.S. Constitution. The States involved in the suits say the Clean Water Rule unlawfully gives the management responsibilities for a majority of water and land resources to the Federal government, which will negatively affect farmers, developers, and landowners. The primary object of the lawsuits is to have the justice system grant a permanent injunction against the Clean Water Rule to prevent it from taking effect.

"This increased regulation means increased permitting requirements where permits have not been previously required. The new rule greatly expands and brings numerous isolated bodies of water under the jurisdiction of the EPA and Corps. Due to the high volume in the number of permits, the expected time to obtain a permit will increase. Our citizens cannot afford these costly delays. In addition, failure to get a permit will subject North Dakotans to steep penalties and even jail time," says Wayne Stenehjem, North Dakota's Attorney General. "North Dakotans care about our water resources and have been protecting these resources as waters of the State and will continue to do so. This federal power grab is unnecessary and unlawful and will do nothing to increase water quality in our state. It will only burden local governments."

USEPA issued its final Clean Water Rule in late May of 2015. It includes broad new definitions of the scope of “waters of the United States” that fall under the jurisdiction of the Clean Water Act. USEPA has repeatedly said the Clean Water Rule will only apply to the types of waters that have historically been covered under the Clean Water Act, which does not include most ditches, groundwater, shallow subsurface flows, or tile drains.

If you have questions about how the Clean Water Rule could impact your facilities, planned projects, or existing programs, contact Jeff Hruby, AE2S Water Resources Practice Leader, at Jeff.Hruby@ae2s.com or 701-221-0530.


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