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Federal water rule could be rescinded under Trump presidency, Hoeven says

GRAND FORKS -- The results of last week's election may mean the end for the controversial Waters of the U.S. rule, Sen. John Hoeven, R-N.D., said Monday.

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John Hoeven

GRAND FORKS - The results of last week’s election may mean the end for the controversial Waters of the U.S. rule, Sen. John Hoeven, R-N.D., said Monday.

But a prominent environmental group appears to be ready to fight back against any attempts to repeal the regulation.

With Republicans holding a majority in both chambers of Congress and Donald Trump winning the White House, Hoeven said there are “at least three viable paths” to repealing the Environmental Protection Agency’s rule, which clarifies what waterways fall under the Clean Water Act. Critics have cited it as an example of federal overreach.

“WOTUS has posed a real problem for job creators across our nation, including our farmers and ranchers, and we are now in a strong position to repeal the rule permanently,” Hoeven said in a news release that doesn’t refer to Trump by name.

Trump called for eliminating the Waters of the U.S. rule in a September speech, referring to it as among the federal government’s “most intrusive regulations,” according to a briefing from the League of Conservation Voters.

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In the release, Hoeven laid out three options for repealing the rule: Congress could rescind it legislatively next year, the new administration could rescind it through the rulemaking process, or the Sixth Circuit Court of Appeals could strike it down. North Dakota is among the states challenging the rule.

But Jon Devine, a senior attorney for the Natural Resources Defense Council, said a president can’t simply repeal a rule at the snap of his or her fingers. It requires a “full public process,” he said.

“It’s by no means a done deal just from a practicality standpoint,” Devine said.

Moreover, if the Trump administration pursues a repeal, environmental groups such as the NRDC won’t just “roll over,” Devine said. As for the current legal challenge, he said the “record supporting the protection of the kinds of water resources the rule includes is absolutely solid.”

Devine said the Waters of the U.S. rule helps bring waterways, such as streams and wetlands, out of “legal limbo” and under the protection of the Clean Water Act. He said those waters are “critical” to downstream water quality and clean drinking water.

But the rule’s critics, such as the American Farm Bureau Federation, argue it should be vacated by the courts. In an issue paper released a year ago, the group said the rule grants “regulatory control over virtually all waters, assuming a breadth of authority Congress has not authorized.”

The other members of North Dakota’s congressional delegation, Democratic Sen. Heidi Heitkamp and Republican Rep. Kevin Cramer, also have been critical of the EPA’s rule.

In an interview Monday, Hoeven called the Waters of the U.S. rule a “big-time overreach.” He presented a hypothetical scenario of a property owner whose land includes water ponds, which then flow into a ditch or a drainage system, which ultimately leads to the Red River.

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“Do you now have to check with the EPA before you determine how to handle that ephemeral pond?” Hoeven said. “That’s the problem it creates.”

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