Submitted Photo Members of a listening session panel on WOTUS in Bismarck on Friday, Dec. 12, are from left, Gov. Kelly Armstrong, U.S. Sen. Kevin Cramer, Peggy Browne with the EPA, U.S. Sen. John Hoeven and D. Lee Forsgren with the U.S. Army. Photo from the Office of the Governor.

BISMARCK – North Dakota state officials and industry leaders called for common sense, clarity and certainty in supporting a new federal Waters of the U.S. rule at the nation’s first WOTUS listening session in Bismarck Friday, Dec. 12.

U.S. Sen. Kevin Cramer, R-ND, who was joined by U.S. Sen. John Hoeven, R-ND, hosted the session, attended by D. Lee Forsgren, principal deputy assistant secretary of Army (Civil Works) and Peggy Browne, EPA Office of Water, principal deputy assistant administrator. Jess Kramer, EPA Office of Water assistant administrator, participated remotely.

While there was general support for the proposed new WOTUS rule, those who testified also recommended strengthening certain definitions, including clearly defining “relatively permanent” and “continuous surface connection” with regard to wetlands.

Cramer noted states are tasked with primacy in regulating water pollution, but the federal government establishes the definitions, and there’s been a ping pong of definitions as federal administrations have changed. Under the 2015 Obama administration rule, more than 80% of North Dakota’s land mass would have been under federal jurisdiction because of the presence of prairie potholes, he said.

The 2023 Supreme Court’s Sackett decision established that the Clean Water Act encompasses only relatively permanent, standing or continuously flowing bodies of water forming geographic features considered streams, rivers, lakes and oceans. Wetlands are included only if indistinguishably part of a body of water. The proposed rule under the Trump administration stays within the confines of the court’s decision, Cramer said.

“If you want to stop going to the Supreme Court every four years to have them correct you, you just write the right rule, and I think that’s what we’ve got here,” Cramer said.

Dave Glatt, director of the North Dakota Department of Environmental Quality, said the proposed rule comes closer to defining a regulatory pathway that can be interpreted and implemented at the local level.

“It is important to note that water resources not considered jurisdictional under WOTUS are regulated to state statute and administrative rule in North Dakota,” he said.

However, he also cited the need for more clarification of certain WOTUS terms, such as “relatively permanent,” and “tributaries.”

North Dakota Agriculture Commissioner Doug Goehring also suggested tightening up definitions. He said the rule should define “relatively permanent” or “continuous surface connection” as year-round water rather than including water features that are seasonal.

He also recommended the EPA and Army Corps of Engineers consider all waters nonjurisdictional unless the federal government establishes its jurisdiction by clear and convincing evidence derived from objective, field-observable indicators.

Goehring called previous WOTUS rules overbroad and ambiguous. He spoke about the WOTUS rule’s inclusion of prairie potholes, affecting everyday agricultural activities.

“Producers could only conduct these activities with EPA approval. And to get EPA approval, the producer, too often, had to retain expert consultants and hydraulic engineers and specialized lawyers just to get them through the complex federal permitting process,” he said.

Ron Henke, director of the North Dakota Department of Transportation, asked for a clear exclusion of roadside ditches from regulations in the new rule. Road ditches are important to protect roads and their maintenance should not be subject to burdensome permitting rules, he said.

The listening session also brought comments from engineers, developers and builders, who welcomed regulatory clarity and consistency in the proposed rule.

Don Dabbert, president of Dabbert Custom Homes in Fargo, reported compliance with WOTUS regulations can cost $25,000 per home lot before any other work even gets started.

Andrea Pfennig, vice president of Government Affairs with the Greater North Dakota Chamber, spoke about construction delays caused by permitting challenges.

“These delays carry real economic consequences. A clearer definition of federally regulated waters will help companies plan secure financing and keep projects on schedule. That level of predictability encourages continued investment across the state,” she said.

Julie Ellingson, executive vice president for the North Dakota Stockmen’s Association, asked that interstate waters not automatically fall under federal jurisdiction if they would not be jurisdictional if they didn’t cross a state line.

“A legally and practically narrow definition is critical to ensuring that our industry can continue to maintain America’s grassland ecosystems, natural water filters and wildlife habitat. For too long, ranchers have been unable to determine whether features on their own property are federally jurisdictional,” she said. “A practical WOTUS definition will allow the average landowner, not an attorney or an engineer, to walk out on their own property to see a water feature and, at minimum, make a preliminary WOTUS determination.”

Ryan Gregg, legislative specialist with the North Dakota Farmers Union, suggested strengthening the “prior converted cropland” exclusion and clearly defining that temporarily idle land, such as for conservation, should not be considered abandoned under regulatory rules.

Speaking in support of the proposed rule were Gov. Kelly Armstrong and Attorney General Drew Wrigley, whose office had received legislative funding to lead a 24-state coalition in getting a stay on the Biden administration’s WOTUS rule.

“This proposed rule protects our water resources while protecting and preserving private property rights. Under the new rule, farmers and ranchers won’t have to worry about asking the federal government’s permission before they can plant a soybean crop or run cows on their pasture,” Amstrong said.

Hoeven advocated for turning the new rule into permanent law if the congressional votes can be mustered. Cramer agreed the rule has potential to be codified into law because of the science behind it.

Kramer, with the EPA, said the proposed rule intends to achieve three objectives:

– implement the direction provided by the Supreme Court in the Sackett decision, which laid out limits on federal jurisdiction over waters and wetlands.

– cut red tape and unnecessary regulatory burden and reduce the cost of doing business.

– protect water quality by striking the right balance between federal and state authority.

“The proposal recognizes that states and tribes know their land and water resources better than bureaucrats in Washington and are best poised to manage them,” she said. “Property owners know what’s happening on their land. They know when the water flows. This proposed rule aims to tap into that knowledge and recognize that the American people know what happens on their property, and that the states are the right folks to be regulating, where that is appropriate.”