The federal government’s proposed “Waters of the United States” rule is being criticized as “ill-conceived” and many North Dakota officials have submitted comments asking for it to be withdrawn. The proposed rule by the U.S. Environmental Protection Agency, EPA, and the U.S. Army Corps of Engineers includes new and broad definitions of what constitutes waters owned by the federal government and is therefore subject to its regulations. It expands the agencies’ authority over a countless number of small wetlands, creeks, stock ponds and ditches under the Clean Water Act.
“As written, this proposed rule would drastically expand the EPA’s authority to include virtually all surface water, including seasonal streams, ponds and dry ditches. It is a clear example of government overreach and it’s unworkable for our farmers, ranchers, for other landowners and for North Dakota’s business community,” Gov. Jack Dalrymple said of the proposed rule. “North Dakota already has laws in place to manage and protect all waters of the state. There are limits to federal authority and the EPA and U.S. Army Corps of Engineers have drastically overstepped with this proposed rule.”
Dalrymple and several other state leaders, including his fellow Industrial Commission members Attorney General Wayne Stenehjem and Agriculture Commissioner Doug Goehring, submitted a 15-page document detailing a wide range of problems the proposed rule would create in North Dakota. In the document, the officials also expressed their concern that the EPA and Corps of Engineers did not inform or consult states in drafting the proposed rule.
Oil and gas industry fears impacts of proposed rule
The proposed rule is of great concern to the energy industry and local government since it creates an all-inclusive regulatory framework connecting all water back to the tributary definition under the EPA and the Corps of Engineers authority.
“It is excessive in scope with drastic consequences,” Goehring said.
Oil and gas permitting within the Williston Basin is likely to be impacted by the rule if it is passed. Ron Ness, president of the North Dakota Petroleum Council, told Petroleum News Bakken that the rule is confusing, vague and overreaching.
“This rule could have far-reaching negative impacts on landowners, their private property rights, and their ability to manage and be good caretakers of the land,” he said.
Montana Petroleum Association, MPA, Executive Director Dave Galt is concerned that adding language such as “adjacent waters” to include holding ponds and ephemeral streams (intermittently holding water) will require full permitting and consultation with the Corps of Engineers which is already understaffed.
“I would expect the expanded definition to increase permit requirements for drilling locations and any kind of linear pipeline project to increase dramatically,” Galt told Petroleum News Bakken. “Businesses represented by MPA are adept at working near ‘Waters of the US’ now, as currently defined. Expanding the definition to include new sources will make the regulatory burden far more complex, and may impede future developments in oil and gas.”
Galt noted that initial tests by the United States Geological Survey found no water contamination from drilling in the Bakken, indicating that the Clear Water Act is adequately written to protect groundwater sources (see story, this page).
“Adding new language, as the rule proposes, would only add to the red tape natural resource industries are already working around,” Galt said.
Finding ways to stop it in Washington
North Dakota Sen. John Hoeven has repeatedly called on the EPA to abandon the proposed rule. He is leading the effort in the Senate Appropriations Committee to include language in the Energy and Water Appropriations bill that would prevent the EPA and the Corps from implementing the new rule in 2015 by blocking any funding for it.
“The last thing that our producers and all of our small businesses need are unnecessary mandates that make it harder to succeed,” Hoeven said when addressing members of the North Dakota Farm Bureau on Nov. 15. “We need to create a better business climate in this country that helps, not hinders, businesses like our farms and ranches.”
Hoeven is also cosponsoring and pushing to pass the Protecting Water and Property Rights Act of 2014, which is legislation that would prevent the EPA and the Corps from finalizing the regulation.
Recently, the Small Business Administration also recommended that the EPA and Corps withdraw the proposed rule. In October, the SBA’s Office of Advocacy, an independent voice for small businesses, concluded the EPA and Corps had used incorrect data in framing the rule, which they said impose costs directly on small businesses and have a significant economic impact on them.
