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Stenehjem plans to resume argument against water rule after US Supreme Court decision

North Dakota Attorney General Wayne Stenehjem during a stop in Fargo in May 2016. File photo.

BISMARCK—The nation's highest court said Monday, Jan. 22, that legal challenges to the so-called Waters of the U.S. rule fall under federal district court jurisdiction, a decision welcomed by North Dakota Attorney General Wayne Stenehjem.

In an interview with Reuters this month, Environmental Protection Agency Administrator Scott Pruitt disclosed plans to rewrite the Obama-era rule intended to clarify which water bodies are covered by the Clean Water Act. It has been derided as a case of federal overreach into negligible waterways.

Stenehjem said it's important to continue the legal fight following Monday's unanimous decision by the U.S. Supreme Court. A preliminary injunction against the rule was issued in 2015.

"You can expect that there will be parties who will want to fight rescinding the rule," he said.

Stenehjem, a Republican who leads 13 states in a fight against the rule, said they now plan to ask the North Dakota court to lift the stay that was issued pending the Supreme Court decision, "pick up the case and resume our argument that the rule is legally invalid."

"We maintained strongly that it belonged in the district court here in North Dakota" rather than federal appeals courts, he said.

Stenehjem said North Dakota has some unique characteristics that bolster its case, such as prevalence of prairie potholes the attorney general said are "bodies of water that don't connect to anything but were subsumed under this federal rule."

The rule's supporters, such as the Natural Resources Defense Council, say it would protect smaller waterways that feed larger bodies of water from pollution.

"Its repeal would make it easier for irresponsible developers and others to contaminate our waters and send the pollution downstream," NRDC President Rhea Suh said last year.

But in a statement Monday, Stenehjem argued the rule would "greatly and unlawfully expand the federal government's authority over North Dakota's land and water resources and our state's agricultural and natural resources and vastly limit legitimate state authority to control water pollution."

Stenehjem said the case will probably "wind up back in the Supreme Court on the final merits."

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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