North Dakota judge puts EPA's new clean water rule on hold

WASHINGTON – Opponents of the Environmental Protection Agency's new pollution control rule for streams, wetlands and drainage ditches got some good news last month. A federal judge in North Dakota temporarily stopped the EPA from enforcing rules meant to protect water quality in 13 states.

What that Aug. 27 ruling means in Minnesota and 36 other states not party to the North Dakota suit remains as murky as the runoff draining from ranches and farms into streams and creeks that feed the Mississippi River.

Most of Minnesota's massive agriculture industry sees the rule as a government land grab. But its equally important tourist industry depends on keeping the state's rivers and lakes pristine in order to attract visitors.

In Fargo, U.S. District Judge Ralph Erickson has accepted briefs from opponents and supporters of the "Waters of the United States" rule who argued whether Erickson's injunction should be extended nationwide.

At stake is the EPA's ability to begin applying its new pollution control rule in three-quarters of the United States.

If it can't, property owners in all 50 states will be able to continue to do things that are not allowed under the new rule as the courts decide its legality.

The Minnesota Farm Bureau, which actively opposes the rule, is nevertheless sending out e-mails to its members advising them to move cautiously, if at all, in making changes to their property. The bureau emphasizes that it is giving "basic guidance," not providing legal counsel.

Among the things farmers and ranchers are told to look for are "wetlands, ponds, lakes, creeks, streams, rivers, ephemeral drainages, ditches and seasonally pounded areas." These include areas that are not wet year-round and some that only have water flowing through them after rain if they have areas of low elevation, high elevation, a usual high water mark and flow into another water source.

The Farm Bureau is encouraging members who have any of those features to get an official determination from the EPA and Army Corps of Engineers about whether they are Waters of the U.S. before disturbing the property or adding pollutants to them.

"We want to make sure farmers comply with the law, but that doesn't mean we have stopped fighting it," Hanson said.

The battle over a nationwide injunction is very important to both sides. The Waters of the U.S. rule is one of the Obama administration's major moves to clean up the nation's major waterways by limiting sources of pollution. Environmental groups strongly endorse it.

"Minnesota has a lot of water that is already impaired," Kevin Reuther, legal director of the Minnesota Center for Environmental Advocacy, told the Star Tribune. "The objections to the rule have to do with smaller streams. Those are the heart of keeping water clean. It would not be a good thing if the injunction was applied nationwide. The rule is utterly reasonable."

Still, as a pragmatic matter, Wake counsels NFIB members who may have property covered by the new rule to be "abundantly clear" that it is not affected before disturbing it even if it "ties small businesses' hands." That includes people in construction as well as framers and ranchers, he said.

A nationwide injunction is critical to freeing up people to use their property, at least in the near term, Wake maintained.

In Minnesota, both sides are lobbying U.S. Sens. Amy Klobuchar and Al Franken over a pending bill that would repeal the Waters of the U.S. rule and offer guidance to EPA for preparing a new one.

Franken told the Star Tribune that he won't vote for the repeal bill sponsored by Sen. John Barrasso, R-Wyo.

"I'm regularly consulting with farmers and ranchers, conservationists, sportsmen, and others to see how we can make fixes to the EPA rule," Franken said in a statement to the Star Tribune. "But in its current form, Sen. Barrasso's bill puts too many restrictions on our ability to protect federal waters."

"The senator is continuing to seek clarification from the agency on concerns raised by rural Minnesota counties and farmers, including those relating to the issue of prairie potholes," the spokeswoman said in an e-mail to the Star Tribune. "She believes that the EPA still needs to provide clearer guidance about the concerns raised by rural constituents."

The independent business federation's Wake wants the law repealed legislatively. But he believes another outcome is more likely.

"Ultimately," he said, "we think the Supreme Court will have the final say."