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Thirteen States Ask Federal Judge to Block Clean Water Rule

Thirteen states -- including oil and natural gas heavyweights Alaska, Colorado, North Dakota and Wyoming -- asked a federal judge on Monday to block the controversial Clean Water Rule (CWR) from taking effect at the end of the month.

Led by North Dakota, the attorneys general for eight of the 13 states filed a motion for a preliminary injunction in U.S. District Court for District of North Dakota. They argued that if the CWR takes effect as planned on Aug. 28, the revised definition of what constitutes Waters of the United States (WOTUS) "will irreparably harm the states' sovereign interests and their state budgets during the pendency of this litigation."

The other litigants are Arizona, Arkansas, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico and South Dakota. The request for a preliminary injunction is the latest move in a lawsuit the states filed in June (see Shale DailyJune 30).

"The rule is perhaps the most controversial and widely objectionable rule that would usurp state and local control over vast reaches of water in North Dakota and across the nation," North Dakota Attorney General Wayne Stenehjem said in a statement Monday. "It is an unnecessary and unlawful power grab by the federal government that will do nothing to increase water quality in North Dakota. It will only burden landowners, ranchers and farmers."

Stenehjem and the attorneys general for Alaska, Arizona, Colorado, Idaho, Missouri, Montana and Nebraska had signed Monday's request for the preliminary injunction. They asked for a hearing on the motion during the week of Aug. 24.

Last May, the U.S. Army Corps of Engineers and the Environmental Protection Agency released the CWR, regulations designed to bolster the federal Clean Water Act by clarifying what water deserved protection. The oil and gas industry is opposed to the regulation because they believe it could stifle development, while Republicans deride it as an overreach by the federal government (see Shale Daily, May 27).

In a separate filing on Monday in support of an injunction, North Dakota Industrial Commission Director Lynn Helms said the WOTUS rule would actually disrupt the state's plans to curb natural gas flaring at oil wells (see Shale DailyMay 13).

"In North Dakota, construction of the underground pipelines must occur between late August and through the end of October, after crops are harvested but before the ground freezes," Helms said. "The Aug. 28 effective date of the WOTUS rule will directly impact the planned expansion of these gas capture and infrastructure requirements which will in turn, impact operators' ability to comply with North Dakota's flaring reduction laws and regulations."

Helms added that the loss of just one construction season would create the cumulative loss of 67 Tcf of gas, plus $7.5 million in gross production tax revenue for the state and $40 million in royalty income to mineral owners.

District Court Judge Ralph Erickson is presiding over the case, which is North Dakota et al v. U.S. Environmental Protection Agency et al (No. 3:15-cv-00059-RRE-ARS).

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