Hardin Hall, Room 107 University of Nebraska, East Campus
Unofficial Statement
1
1 United States Senate
2 Environment and Public Works Committee
3 Field Hearing
4 Impacts of the Proposed Waters of the
5 United States Rule on State and Local
6 Governments and Stakeholders
7
8 Hearing held at the hour of
9 10:00 a.m. on March 14, 2015, at Hardin Hall
10 Auditorium, University of Nebraska-Lincoln,
11 3310 Holdrege Street, Lincoln, Nebraska.
12
13 APPEARANCES:
14 Senator Deb Fischer Chair
15 Mr. Justin Lavene Panel 1:
16 Ms. Mary Ann Borgeson Panel 2:
Ms. Barbara Cooksley
17 Mr. Donald Wisnieski
Mr. John Crabtree
18 Mr. Wesley F. Sheets
Mr. Don Blankenau
19
20
21
22
23
24
25
2
1 SENATOR FISCHER: Good morning. Good
2 morning everyone. This hearing will come to
3 order.
4 I am pleased to bring the United States
5 Senate to Nebraska and convene this hearing of the
6 Senate Environment and Public Works Committee.
7 Today's hearing is titled Impacts of the Proposed
8 Waters of the United States Rule on State and
9 Local Governments and Stakeholders.
10 I believe Nebraska is the perfect place to
11 hold this hearing. Our surface water and
12 groundwater are so important to this state.
13 Nebraskans take great pride in their stewardship
14 of these precious resources and they are rightly
15 concerned with the federal government's attempt to
16 seize control.
17 I am pleased to hold this hearing at our
18 very own land-grant university.
19 So, to begin, I would like to say a special
20 thank you to the University of Nebraska for
21 providing today's accommodations.
22 I would also like to thank our staff that is
23 present today. I have two of my Washington staff
24 members present, Michelle Weber, who is from
25 Blue Hill, Nebraska, and Jessica Clowser, who is
3
1 from Seward, Nebraska. They are tucked back here
2 around the corner. But I am happy that they were
3 able to come home and serve here at the Committee
4 to help me.
5 We also have two Committee staff people that
6 our Chairman, Senator Jim Inhofe of Oklahoma has
7 provided, Laura Acheson and Lauren Sturgeon. So
8 thank you for being here.
9 And Senator Ben Cardin from Maryland on the
10 Majority side has sent a staff person as well,
11 Mae Stevens.
12 So welcome to all of you.
13 I'm excited to welcome a diverse group of
14 Nebraska's stakeholders this morning to share
15 their perspectives on the proposed rule to revise
16 the definition of waters of the United States for
17 all Clean Water Act programs. This hearing will
18 allow us to explore the issue in depth and
19 determine the impact this rule would have on our
20 state and on Nebraskan families. Last year, the
21 EPA and the Army Corps of Engineers proposed a
22 rule that redefines federal regulatory reach to
23 include everything from farm ponds and drainage
24 ditches to low-lying areas that are dry for most
25 of the year. This proposal is a massive expansion
4
1 of federal jurisdiction beyond congressional
2 intent.
3 Congress limited the federal government's
4 regulatory authority in the Clean Water Act to
5 navigable waters. And the Supreme Court confirmed
6 these limitations in the SWANCC and Rapanos cases.
7 The Court expressly rejected attempts to expand
8 federal control over water, and made it clear that
9 all water is not subject to federal jurisdiction
10 under the Clean Water Act. Instead of following
11 the law, this administration has decided to twist
12 the rule's definition to include almost every drop
13 of precipitation that could eventually make it to
14 navigable water. This was not the intent of the
15 Clean Water Act.
16 Nebraskans take seriously their role in
17 protecting and conserving our natural resources.
18 Responsible resource management, including careful
19 stewardship of our water, is the cornerstone of
20 our state's economy. This is a vital interest to
21 Nebraska's families, Nebraska businesses, our
22 agricultural industry, and our local communities.
23 Nebraskans understand that the people
24 closest to the resource are also those who are
25 best able to manage it.
5
1 We are blessed to live in a state with 23
2 local Natural Resource Districts served by board
3 members from those local communities, and to have
4 landowners and communities that truly care about
5 clean water and a healthy and productive
6 environment. That's why it came as no surprise
7 that Nebraskans were so offended when the federal
8 government made its proposal without consulting
9 state and local authorities, without considering
10 their rights, and without realistically examining
11 the potential impacts. I am grateful that
12 Nebraskans were quick to recognize the
13 far-reaching consequences of this rule, and to
14 organize a group effort to raise the alarm. The
15 common sense Nebraska coalition should be
16 commended for its efforts to highlight the
17 sweeping implications of this rule on everyone,
18 from county officials trying to build a road, to a
19 farmer managing rainwater runoff.
20 Clean Water Act permits are complex, time
21 consuming and very expensive. They leave
22 landowners and our local governments vulnerable to
23 citizen suits. The proposal would make it
24 difficult to build anything, whether it's a home
25 for a family, a factory to provide needed jobs, or
6
1 highways and bridges necessary to transport our
2 people and goods.
3 I am entering into the hearing record a
4 letter and analysis from Mike Linder, who served
5 as the Director of the Nebraska Department of
6 Environmental Quality from 1999 to 2013. He
7 states that the rule is an erosion of cooperative
8 federalism that will harm the success of
9 Nebraska's conservation practices and programs.
10 Today's hearing will begin with a witness
11 who can speak to the importance of the state's
12 water protection programs and cooperative
13 federalism.
14 Assistant Attorney General Justin Lavene is
15 the chief of the Agriculture Environment and
16 Natural Resources Bureau at the Nebraska
17 Department of Justice. A native of Bertrand,
18 Nebraska, Mr. Lavene supervises the litigation and
19 legal support for the Nebraska agencies and
20 boards, including the Department of Environmental
21 Quality, Department of Natural Resources,
22 Department of Agriculture, Game and Parks Division
23 and the Environmental Trust.
24 Mr. Lavene, I thank you for being here.
25 And when you are ready, please begin your
7
1 testimony.
2 MR. LAVENE: Thank you, Senator Fischer.
3 Chairman Inhofe, and Ranking Member Boxer, Members
4 of the Senate's Committee on Environment and
5 Public Works, my sincere thanks for the
6 opportunity to present the Nebraska Attorney
7 General's Office concern regarding the joint
8 proposal by the United States Army Corps of
9 Engineers and the Environmental Protection Agency
10 to define the Clean Water Act's use of the phrase
11 "waters of the United States" in a manner that
12 would appear to dramatically expand the scope of
13 federal authority under the Act. The Nebraska
14 Attorney General's Office, alongside a number of
15 our sister states, previously offered comments to
16 the Agencies on the proposed -- on the proposed
17 expansive definition. The Attorneys General
18 apprised the Agencies of those aspects of the
19 proposed definition which are inconsistent with
20 the limitations of the Clean Water Act, as
21 interpreted by the United States Supreme Court, as
22 well as the outer boundaries of Congress's
23 constitutional authority over interstate commerce,
24 and the principal of cooperative federalism as
25 embodied in the Act. However, it is not certain
8
1 that those concerns will truly be considered,
2 which is why we appreciate the opportunity to
3 present additional testimony here today.
4 Congress intended the Clean Water Act to
5 recognize, preserve, and protect the primary
6 responsibilities and rights of the states to plan
7 and -- the development and use of land and water
8 resources. Nonetheless, EPA, along with the
9 Corps, persistently violates this principal of
10 cooperative federalism in practice and now seeks
11 to codify a significant intrusion on the states'
12 statutory obligations with respect to intrastate
13 water and land management. Despite Nebraska's
14 consistent and dutiful protection of its land and
15 water resources, in a manner consistent with local
16 conditions and needs, the Agencies seek to further
17 their disregard for State primacy in the area of
18 land and water preservation, and instead make the
19 Federal Government the primary regulator of much
20 of the intrastate waters and sometimes-wet land in
21 the United States. The Agencies may not arrogate
22 to themselves the traditional state prerogatives
23 over intrastate waters and land use; after all,
24 there is no federal interest in regulating water
25 activities on dry land and any activities not
9
1 connected to interstate commerce. Instead,
2 States, by virtue of being closer to communities,
3 are in the best position to provide effective,
4 fair, and responsive oversight of water use, and
5 have consistently done so.
6 The Agencies propose a single definition of
7 the phrase "water of the United States" for all of
8 the Act's programs. Currently, there is a
9 difference in use and application of the term
10 "water of the United States" for various sections
11 of the Act. In Nebraska, since the 1970s, EPA has
12 delegated authority to the Department of
13 Environmental Quality to implement all programs
14 except Section 404 dredge and fill, and
15 Section 311 oil spill programs. Thus, the Section
16 402, National Pollutant Discharge Elimination
17 System, or NPDES program, the Section 303, water
18 quality standards and total maximum daily load
19 program, and the Section 401, state water quality
20 certification process, are all administered at the
21 state level. This same arrangement exists in all
22 but a handful of states.
23 The continued state administration of the
24 NPDES program requires the Department of
25 Environmental Quality to have an equally stringent
10
1 regulatory structure, including its own definition
2 of jurisdictional waters. Accordingly, the
3 Department has administered the various Clean
4 Water Act programs using its own "waters of the
5 state" definition for nearly 40 years with EPA
6 approval. However, the regulatory approach used
7 by the Agencies to develop a single definition of
8 "waters of the United States," which will affect
9 all the Clean Water Act programs, is modeled after
10 the existing guidance provided by the Agencies and
11 the United States Supreme Court which was limited
12 on its face to the jurisdictional determinations
13 for federally-administered dredge and fill
14 programs found in the Clean Water Act of 404.
15 When applied in the context of other Clean
16 Water Act programs, the proposal creates
17 significant cost and confusion, it increases
18 unnecessary bureaucracy, and infringes on state
19 primacy, and exposes agricultural producers to new
20 liability. During the 40 years of state
21 implementation of the "waters of the state"
22 requirement, the Department has applied the
23 definition to Section 402 permitting decisions
24 thousands of times. In Nebraska, livestock
25 producers in particular are subject to the
11
1 requirements of either an individual or the
2 general NPDES discharge permit. In accordance
3 with the terms of their permits, which are often
4 crafted in reliance on the definition of the
5 "waters of the state," these producers often
6 construct waste control facilities and mitigating
7 land features, such as berms or waterways, to help
8 divert runoff from waters of the state. If the
9 proposed definition of "waters of the
10 United States" is suddenly applied to the
11 state-administered Section 402 program, the
12 effectiveness of all the Department's permitting
13 efforts is brought into question. The land
14 features constructed by producers in a good-faith
15 effort to comply with the permitting requirements
16 may constitute a tributary or adjacent water.
17 Moreover, long-exempted operations may unknowingly
18 find themselves subject to Clean Water Act
19 jurisdiction.
20 Similar increased administrative burdens may
21 result with regard to the states' administration
22 of Section 401, state water quality
23 certifications, and Section 303, water quality
24 standards. As the scope of federal jurisdictional
25 waters grows larger with the promulgation of the
12
1 proposed definition, the number of federal actions
2 requiring Section 401 certification of the state
3 and the number of waters requiring the
4 establishment of Section 303 standards and TMDLs
5 will likely also increase. The Department of
6 Environmental Quality will be responsible for
7 shouldering this burden leading to increased
8 budget and resource demands.
9 The Agencies suggest that the rule does no
10 more than clarify what the Supreme Court has
11 already declared with respect to the scope of
12 federal authority under the Clean Water Act. By
13 now, the Committee members are likely familiar
14 with the Supreme Court's holdings in Solid Waste
15 Agency of Northern Cook County versus the Army
16 Corps of Engineers, or SWANCC case, and Rapanos
17 versus the United States. Respectively, the
18 holdings in these cases confirmed the limits of
19 the federal government's, and the primacy of the
20 states, over intrastate waters and required, at
21 the least, a demonstrated significant nexus
22 between nontraditional and traditionally
23 jurisdictional waters before the agency may assert
24 its authority.
25 However, the proposed categorical inclusion
13
1 of broadly-defined tributaries and adjacent waters
2 looks to sweep a large mass of previously
3 unregulated land within the ambit of federal
4 jurisdiction. And for any that might remain
5 beyond the Agencies' reach per se, the catch-all
6 is proposed to allow case-by-case determinations
7 for any water meeting the vaguely-defined
8 significant nexus test. The effect of these
9 newly-included categories of land and water
10 features is not clarity, but rather an
11 inconsistent and overbroad interpretation of the
12 Supreme Court's holdings and the limits of the Act
13 which places virtually every river, creek and
14 stream, along with vast amounts of neighboring
15 lands, under the Agencies' Clean Water Act
16 jurisdiction. Many of these features are dry the
17 vast majority of time and are already in use by
18 farmers, developers, or homeowners.
19 More importantly, the imposition of
20 Clean Water Act requirements on waters and lands
21 far removed from interstate commerce or navigable
22 waters is harmful not only to the states
23 themselves, but to the farmers, developers and
24 homeowners. Ninety-two percent of Nebraska's
25 77 thousand square miles of area is used for
14
1 agricultural production. The proposal treats
2 numerous isolated bodies of water as subject to
3 the agencies' jurisdiction resulting in landowners
4 having to seek permits or face substantial fines
5 and criminal enforcement actions. Nor must lands
6 have water on it permanently, seasonly, or even
7 yearly to have it be a "water" regulated under the
8 Act. And if a farmer makes a single mistake,
9 perhaps not realizing that his land is covered
10 under the Clean Water Act or Rapanos, he or she
11 can be subject to thousands of dollars of fines
12 and even prison time.
13 Members of the Committee, we ask that
14 Congress continue to work to ensure that the EPA
15 and the Corps recognize, preserve, and protect the
16 primary responsibilities and rights of the states
17 to plan the development and use of land and water
18 resources in our state.
19 Thank you for the opportunity to be heard.
20 SENATOR FISCHER: Thank you, Mr. Lavene.
21 Now I'd like to go through a series of
22 questions with you, if we could.
23 MR. LAVENE: Okay.
24 SENATOR FISCHER: I have a number of
25 questions here and I would appreciate your
15
1 response to those.
2 Can you talk about the role of the state in
3 protecting water quality and administering the
4 water protection programs, and what is that
5 cooperative federalism that we hear about and why
6 is it so important that states have that strong
7 role in water protection?
8 MR. LAVENE: Sure.
9 With regard to the state protecting water,
10 as I kind of mentioned in my testimony, and this
11 kind of gets into, obviously, the cooperative
12 federalism issue, we have a situation where under
13 the Clean Water Act federal government regulates a
14 portion of the Act's responsibilities. And the
15 State of Nebraska separately administers some of
16 the other programs. As I stated before, the
17 Department of Environmental Quality in the State
18 of Nebraska regulates discharge permits under
19 Section 402, water quality standards, and total
20 maximum daily loads under 303, and also water
21 quality certifications under -- under Section 401.
22 Again, it's a shared responsibility that is --
23 it's basically the function of the cooperative
24 federalism. And that is basically shared
25 responsibility between state and federal
16
1 governments to implement these laws. Now, part of
2 the reason that that occurs is that both the
3 federal government and the states have somewhat
4 separate interests. The federal government does
5 have an interest in protecting interstate streams.
6 So that is originally why the Act was passed
7 dealing with "waters of the U.S." that were
8 basically navigable in fact. But the states have
9 always historically had a strong interest in
10 protecting waters in the state itself. So
11 interstate land use and water issues. And so in
12 examining that and looking at the Clean Water Act,
13 it's appropriate that the state perform the
14 function of dealing with those intrastate waters.
15 Especially those that would allow, in fact,
16 interstate commerce. And so, again, that
17 cooperative federalism is out there, and I think
18 it works well and has worked well for a number of
19 years under the current definition of "waters of
20 the United States". The problem here is you --
21 you get to a point where that cooperative
22 federalism could come into jeopardy, and I think
23 that's because you have a situation where the
24 federal government is -- through this new
25 definition, would be inserting itself or
17
1 interjecting itself into some of the primary
2 responsibilities of the state. And that is
3 reaching out into intrastate waters that should be
4 solely regulated by the state and not the federal
5 government.
6 SENATOR FISCHER: And when you talk
7 about the permitting decisions that are -- that
8 are currently out there, those are
9 state-administered programs; correct?
10 MR. LAVENE: Yes.
11 SENATOR FISCHER: And this proposed
12 rule -- well, if we're going to apply this
13 expanded definition now to state programs, what do
14 you think the impact would be on the Nebraska
15 Department of Environmental Quality?
16 MR. LAVENE: Well, part of the problem
17 here is, again, I probably mentioned a couple of
18 themes or topics here a couple of times, but the
19 State of Nebraska and its ability to implement and
20 administer those federal programs under the Clean
21 Water Act, the State of Nebraska must go through a
22 process of adopting state statutes. And then the
23 Department must go through a process of adopting
24 rules and regulations. Now, those states and
25 those rules and regulations need to be approved by
18
1 the Environmental Protection Agency to make sure
2 that they're consistent with the -- the Clean
3 Water Act and the provisions there. And they at
4 least need to be as stringent as -- as the federal
5 law. One good example that I think I discussed in
6 my testimony is that the State of Nebraska has its
7 own statutory definition of "waters of the state."
8 And it is different than the definition placed on
9 federal laws of "waters of the United States."
10 But that definition as codified in Nebraska state
11 statutes has been approved by the Environmental
12 Protection Agency and has been regulated. That
13 definition has been used and regulative of Clean
14 Water Act programs. The problem here, moving
15 forward then, is in how it will affect the
16 Department. I think there's a lot of uncertainty
17 with regard to how the new definition is going to
18 affect their administration. Will the agency have
19 to go back and go through another review process
20 with the EPA with regard to this new definition
21 and our current state laws and rules and
22 regulations? That's somewhat of an unknown. We
23 don't know if we have to do that. We don't know
24 if we'd have to change the definition of the
25 "waters of the state." We don't know if we'd have
19
1 to basically amend those rules and regulations.
2 Basically what I'm saying is, we're not sure that
3 our actions today are currently appropriate under
4 the new definition or if the changes are going to
5 have to be made for us to continue to administer
6 those programs.
7 SENATOR FISCHER: And I understand that
8 this rule is going to expand the practice on a
9 case-by-case jurisdictional determination. How is
10 that going to really impact our state operations;
11 do you have any idea? I mean, I know there's a
12 lot of unknowns out there, but how -- how do you
13 think that will impact the operations here in the
14 State of Nebraska?
15 MR. LAVENE: I -- I think it's going to
16 cause some confusion on behalf of both the
17 Agencies and the individuals that will be
18 regulated. I think what you have here is, under
19 this new definition, you're going to have
20 basically a per se -- basically an increase in the
21 per se categorical determination of what is a
22 "water of the U.S." And so that's going to expand
23 geographically in the state to encompass waters
24 that probably were previously not under the
25 jurisdiction of the Clean Water Act. But in doing
20
1 so you're also going to leave some isolated bodies
2 of water out of there that there are going to be
3 questions on. Basically, when you look at the
4 proposed rule and definition and what these
5 isolated waters are, these other waters, if you
6 will, you do have to go through a case-by-case
7 analysis of that, and it really determines or
8 comes down to whether or not there's some
9 significant nexus to a core water. Again, the
10 problem is, we're uncertain how EPA is going to
11 deal with that. And so because EPA hasn't given
12 us that additional information and/or guidance on
13 how they're going to handle that, the State of
14 Nebraska's unsure on how we can implement our
15 programs using that same definition.
16 SENATOR FISCHER: Have you requested
17 guidance?
18 MR. LAVENE: We have gone through --
19 well, I know that there have been various meetings
20 with EPA and the Department of Environmental
21 Quality prior to this rule coming on, but I don't
22 think that those -- those meetings were -- I
23 wouldn't consider them consultation and
24 collaboration, if you will, on trying to develop
25 language for the proposed rule to basically meet
21
1 needs and requirements at the state level. I
2 don't think there was really that give and take,
3 if you will, between the state and federal
4 government.
5 SENATOR FISCHER: And you explained the
6 State has been delegated authority over the Clean
7 Water Act program since the '70s?
8 MR. LAVENE: Yes.
9 SENATOR FISCHER: And we have our unique
10 "waters of the state" definition that's been in
11 effect for 40 years; correct?
12 MR. LAVENE: Yes.
13 SENATOR FISCHER: And if the certainty
14 of that definition and the four decades of
15 decision making by the Nebraska Department of
16 Environmental Quality is basically turned
17 upside down by this proposed rule, what do you
18 think's going to be the result? And address
19 liability concerns, if you would.
20 MR. LAVENE: Again, I go back to this
21 common theme of confusion and uncertainty for the
22 agency. And, again, that goes back to, we are
23 uncertain how the Environmental Protection Agency
24 is going to interject itself into the State's
25 current administration of the federal programs
22
1 under the Clean Water Act. Again, we don't know
2 if new laws need to be passed, new rules need to
3 be adopted. I think the Department of
4 Environmental Quality, and I think most everyone
5 would agree, that the -- that the Department of
6 Environmental Quality has done an outstanding job
7 in the last 40 years to protect the State's water
8 quality. So if you look at it that way, we're not
9 sure what issues need to be fixed. But here,
10 without knowing how we're going to proceed
11 forward, you're basically going to upend that 40
12 years of, basically, certainty that both the
13 Agency had, along with the regulating community,
14 and what they -- what they understood. And so
15 basically by doing that you're going to have
16 producers out there that are now uncertain about
17 whether or not an action that they might take
18 could be or will be covered underneath the Clean
19 Water Act, which causes concerns and also, again,
20 for the agency side, for DEQ, until we get that
21 guidance from EPA, we're -- we're just uncertain.
22 That uncertainty and that confusion basically, in
23 my mind, breeds litigation, and it -- it breeds
24 potential liability on behalf of those producers.
25 Because if they go out and take an action that is
23
1 then, you know, after the fact determined to be
2 the waters of the U.S., again, they can be exposed
3 to fines and potential criminal penalties. And so
4 when you have that situation of uncertainty along
5 with the potential of fines and, you know, jail
6 time, you're going to get to a point where there's
7 going to have to be litigation on this between
8 producers and the agencies that are enforcing
9 these -- these laws.
10 SENATOR FISCHER: For the benefit of the
11 public here, if you could explain the holdings in
12 those two Supreme Court cases that both of us
13 mentioned in our statements about confirming the
14 limits of the federal government's authority over
15 water that Nebraska -- or that Congress has
16 established in the Clean Water Act, if you could
17 go into a little detail on those two cases, I'd
18 appreciate it.
19 MR. LAVENE: I will. And I'll kind of
20 maybe put them together.
21 SENATOR FISCHER: Okay.
22 MR. LAVENE: They're pretty substantial.
23 But the SWANCC case, or the earlier case in the
24 State of Illinois, was against the Army Corps of
25 Engineers. And both SWANCC and Rapanos basically
24
1 dealt with bodies of water. In one case a pond,
2 and in another case a series of wetlands. And
3 that these bodies of water are -- were adjacent to
4 non-navigable tributaries. So they were not
5 directly connected to a "water of the U.S." under
6 the current definition, if you will. In the
7 SWANCC case the entities that actually wanted to
8 do a dredge and fill went to the Corps and asked
9 whether or not they needed to have a 404 permit.
10 The answer was no. Until it was later determined
11 that some birds were flying overhead and landing
12 on the pond and using it like a natural habitat.
13 And because they were migratory birds, the Corps
14 then felt that that was something that affected
15 interstate commerce. And because it affected
16 interstate commerce, the Agency felt that it would
17 be determined to be waters of the U.S., which
18 would be then subject to the Clean Water Act
19 jurisdiction and requirements of a 404 permit.
20 In that case you basically had a decision
21 that the Court said, that's way too tenuous of a
22 line to draw between an interstate commerce for
23 migratory birds and a body of water that does not
24 meet a navigable stream. And so that was one
25 limitation on the federal government in SWANCC.
25
1 The other one, in Rapanos, there are actually two
2 opinions that came out, the plurality opinion and
3 an opinion by Justice Kennedy. Both of these were
4 dealing with the secondary water issues
5 definitions. The two opinions kind of had a
6 different viewpoint on how they should analyze it.
7 However, they both came to the conclusion that
8 these wetlands should not be considered waters of
9 the U.S. and there's a limit on that jurisdiction
10 by the federal government. The plurality opinion
11 in that case basically stated that these secondary
12 waters with these wetlands, that there needed to
13 be some continuous surface water connection to a
14 permanent water. And so you had to have a strong
15 connection, a permanent connection to a navigable
16 water. Justice Kennedy took a little different
17 tack to it. But he basically came out and said,
18 look, there at least has to be a significant nexus
19 from the secondary water to an in fact navigable
20 water. And when he was going through that -- that
21 ruling, or his decision in that, you know, if
22 someone would look at that as a hydrologic
23 connection, but it had to be more than a
24 hydrologic connection, it had to be something that
25 really dealt with the science or biological or
26
1 chemical makeup of the wetland affecting that
2 navigable water.
3 And so both of those cases, what they did
4 was truly limit the scope of the agency in the
5 jurisdictional waters of the U.S. by saying, if
6 there's not a connection then it's not going to be
7 underneath the purview of the federal government
8 for a 404 permit.
9 SENATOR FISCHER: So let me ask you, in
10 your legal opinion, do you think this proposal by
11 the EPA and the Corps would adhere to or violate
12 those Supreme Court decisions?
13 MR. LAVENE: Well, along the lines with
14 some previous comments that the Attorney General
15 of the State of Nebraska, along with a couple
16 other Attorney Generals sent for comments on this,
17 we feel that the rule does violate the previous
18 decisions of the Supreme Court in limiting that
19 jurisdiction. And the reason for that really
20 comes down to is, we have a situation, as I
21 explained before, is -- is you're having a
22 definition that now is going to have a per se
23 expansion of and categorical jurisdiction over
24 these lands and these waters. If it's in a
25 tributary area with an adjacent water, that could
27
1 be neighboring, in a repairing area or a
2 floodplain area, if that is determined to be, as a
3 fact, a definitional term, it doesn't matter what
4 connection that body of water actually has to a
5 navigable water. It simply is per se determined
6 to be waters of the U.S. And so what that does is
7 basically strip away the analysis that the
8 Supreme Court said you had to go through, and that
9 is, in the one instance, to at least have a
10 continuous surface water connection to that core
11 water, or at least have a very significant nexus
12 to the core water. We're not making that
13 determination. We're simply making a per se
14 determination that, with a wave of our hands, it's
15 under the jurisdiction of the federal government.
16 That's going to be the problem moving forward and
17 why this appears to violate the Supreme Court
18 rulings.
19 SENATOR FISCHER: And I understand one
20 of your roles in the Justice Department is to
21 enforce the Clean Water Act. Do you know what the
22 consequences are with the penalties in violation
23 of that Act? Can you explain those, please?
24 MR. LAVENE: I'll explain the state
25 level a little bit clearer than probably the
28
1 federal government.
2 But in the State of Nebraska for -- for
3 having a, basically a discharge into the stream or
4 adding a pollutant to the stream without a permit,
5 that can be either a Class IV felony or you could
6 have fines up to $10,000 per day. Under the
7 federal -- federal penalties, depending on whether
8 it's a known violation or the like, the fines per
9 day could go anywhere from $2500 up to $50,000 per
10 day. And there are also various criminal
11 sanctions that -- if you're polluting the streams.
12 And so, as I kind of stated before, those are
13 pretty big fines, penalties, and possibly criminal
14 sanctions that could be imposed against an
15 individual if they're violating this act.
16 SENATOR FISCHER: Okay. And, in your
17 opinion, do you think this proposed rule is going
18 to, I guess, offer any additional protections to
19 water quality?
20 MR. LAVENE: As I've stated before, I
21 think the Department of Environmental Quality in
22 the State of Nebraska, with its 40 years of
23 history of implementing these federal programs and
24 the Clean Water Act, I think they've done a
25 wonderful job. Without having further guidance
29
1 and information from the federal government on how
2 they're going to interpret this new rule, it
3 really -- it's really hard, if not impossible, to
4 determine what benefits would come out of it.
5 SENATOR FISCHER: Okay. So let me see
6 if I have this correct from everything you said.
7 We have a proposed rule that's going to infringe
8 on the state's authority to protect and manage our
9 water resources; it will disrupt the successful
10 operation and certainty of our state-run programs;
11 it will create administrative burdens for our
12 Nebraska Department of Environmental Quality; it
13 will increase litigation and liability exposure
14 for our people and businesses; it will violate
15 Supreme Court rulings on the limits of federal
16 authority under the Clean Water Act; and you don't
17 believe that there would be meaningful benefits to
18 this in the end? Did I sum you up pretty well
19 here?
20 MR. LAVENE: I'd say that's a pretty
21 good summary, yes.
22 SENATOR FISCHER: Okay. Good.
23 I thank you for your testimony before the
24 Committee, Mr. Lavene, and appreciate you taking
25 time to be with us today. Thank you.
30
1 MR. LAVENE: Thank you, Senator Fischer.
2 SENATOR FISCHER: With that, I would ask
3 that our second panel please come up.
4 (Short break taken
accordingly -- 10:35 a.m.)
5
6 SENATOR FISCHER: Well, I would like to
7 welcome the second panel to the table. There are
8 several excellent witnesses representing a very
9 diverse group of stakeholders, and they can speak
10 more of the impacts of the proposed rule and what
11 that will have on citizens, businesses, counties,
12 and livelihoods.
13 We are going to begin with Mary Ann
14 Borgeson. She is the Chair of the Douglas County
15 Board of Commissioners. Commissioner Borgeson
16 is a native of Omaha and became the first
17 female to chair the Douglas County Board in
18 1997. In addition to serving as chair,
19 Commissioner Borgeson serves on the Board of
20 Directors for both the Nebraska Association of
21 Counties and the National Association of Counties.
22 She is currently the president-elect for Women of
23 the National Association of Counties.
24 Commissioner, I am eager to hear how this
25 proposed rule will impact our counties and
31
1 communities. Please begin your testimony whenever
2 you're ready.
3 MS. BORGESON: Thank you,
4 Senator Fischer, for the opportunity to testify on
5 the "Waters of the United States" proposed rule
6 and the potential impact on county governments.
7 For the record, I have submitted a narrative
8 of my testimony that includes additional
9 information.
10 On a National level, the National
11 Association of Counties, or NACo, has urged the
12 federal agencies to withdraw the proposed rule
13 until further analysis of its potential impacts
14 has been completed. Douglas County concurs with
15 that recommendation.
16 Clean water is essential to all our nation's
17 counties. The availability of an adequate supply
18 of clean water is vital to our nation, and
19 integrated and cooperative programs at all levels
20 of government are necessary to protecting water
21 quality.
22 Douglas County is a "Phase II" community
23 under the National Pollutant Discharge Elimination
24 System, or NPDES, the section of the Clean Water
25 Act. A major emphasis of the County's Stormwater
32
1 Management Plan is to improve water quality by
2 reducing stormwater runoff volumes. This approach
3 is lockstep with EPA's push to implement
4 "green infrastructure" as a key strategy to
5 improve our nation's overall water quality.
6 Simply put, green infrastructure can have a
7 significant positive benefit for water quality,
8 and with this being an EPA priority, it is
9 essential that the proposed "Waters of the U.S."
10 rule be supportive, and not contradictory to, the
11 continued implementation of green infrastructure
12 across the country. Put another way, if the
13 "Waters of the U.S." rule negatively impacts the
14 implementation of green infrastructure, it will
15 mean more taxpayer dollars being wasted on process
16 rather than being directly spent on water quality
17 improvements.
18 Counties own and maintain a wide variety of
19 infrastructure that is impacted by the current
20 regulations and that would be further impacted by
21 the proposed rule.
22 Projects we are working on already
23 significantly impacted by the current regulations
24 are given the lack of clarity in the proposed
25 rule. We anticipate additional negative impacts.
33
1 One of our current projects is a prime example of
2 how cumbersome and expensive the for bidding
3 process is, and the costly delays are largely due
4 to the inconsistencies in the application of the
5 rules and the lack of definitions. Our 180th
6 Street project will improve the section line roads
7 from the Old Lincoln Highway to West Maple Road.
8 Besides providing easier access to new developing
9 areas, it will relieve the traffic -- it will
10 relieve the traffic load on Old Lincoln Highway,
11 which is on the National Registry, and on the
12 section line road. The immediate area is
13 currently being passed over for most development
14 due to a lack of access to major roads --
15 roadways, including the Expressway to the south.
16 The project includes two 900-foot bridges over
17 railroad tracks and a flowing creek and two other
18 bridges over an unnamed tributary. The initial
19 environmental permitting process for these bridges
20 went relatively smoothly and involved a
21 Categorical Exclusion, the lowest level of
22 environmental involvement. The process began in
23 2002, with the construction originally scheduled
24 for 2010. Design and permitting work began in
25 2005. But the environmental documents are still
34
1 not signed. The newest projected construction
2 date is now 2018 because of these delays.
3 The reason for the delays is a small county
4 road ditch which is several feet deep and wide and
5 full of weeds and grasses with a rut at the bottom
6 approximately eight inches wide and an inch deep.
7 There is no ordinary, quote, high -- quote,
8 Ordinary High Water Mark, unquote, associated with
9 this rut because when it rains it is completely
10 under water. However, the Corps of Engineers has
11 declared this rut a "water of the U.S.," prompting
12 a redesign of the project costing the County
13 hundreds of thousands of dollars in delaying this
14 project.
15 An additional concern is storm water
16 clean-up. We deal with disasters such as flooding
17 and wind storms regularly, and these types of
18 storms impact many ditches, culverts, and
19 tributaries. Trying to get permits is already a
20 problem in these situations. Our country has made
21 tremendous strides in improving water quality
22 since the inception of the Clean Water Act, but if
23 the process is not clarified and streamlined, more
24 counties will experience delays in safeguarding
25 and caring for infrastructure and expend
35
1 substantial dollars in doing so. Dollars that
2 could instead be spent on direct improvement of
3 water quality.
4 To reiterate my prior point, I ask that the
5 proposed rule be withdrawn until further analysis
6 and consultation with state and local
7 representatives have been completed.
8 Again, I thank you for the opportunity to
9 testify on the proposed "Waters of the U.S." rule,
10 and I do welcome the opportunity to address any
11 questions you may have later.
12 SENATOR FISCHER: Thank you,
13 Commissioner.
14 Next I would like to welcome Mrs. Barb
15 Cooksley, the president-elect of the Nebraska
16 Cattlemen. Barb and her family raise cattle on
17 their ranch near Anselmo, Nebraska where they
18 pride themselves on being good stewards of the
19 land and water resources. I'm looking forward to
20 Barb's testimony which will offer great insight on
21 how the proposed "Waters of the U.S." rule will
22 affect this very special Nebraska way of life.
23 Barb, please begin your testimony
24 MS. COOKSLEY: Thank you, Senator.
25 Good morning. My name is Barb Cooksley. My
36
1 family raises cattle on our ranch near Anselmo,
2 Nebraska. I am president-elect of Nebraska
3 Cattlemen, and thank you for allowing me to
4 testify today on the impacts of the Environmental
5 Protection Agency and the Army Corps of Engineers'
6 proposed rule on the "waters of the United
7 States." I'm here today representing Nebraska
8 Cattlemen's 3,000 plus members but I'm also happy
9 to lend my voice to nearly 50,000 ag producers in
10 Nebraska. In addition to my service to Nebraska
11 Cattlemen, I currently serve on several
12 environmental boards and committees for the areas
13 and state. Land stewardship has been my family's
14 priority for generations.
15 First and foremost, I want to thank you for
16 your interest in this issue and for continuing to
17 be engaged, because EPA intends to finalize the
18 WOTUS rule by sometime this year. I'm also
19 thankful Congress included language in the omnibus
20 package that led to the withdrawal of EPA's
21 Interpretive Rule. That rule was problematic and
22 did not provide clarity or certainty for
23 agriculture.
24 Animal ag producers pride themselves on
25 being good stewards of our country's natural
37
1 resources. We maintain open spaces, healthy
2 rangelands, provide wildlife habitat while working
3 to feed the world. But to provide all these
4 important functions, we must be able to operate
5 without excessive federal burdens like the one
6 we're discussing today. As a beef producer, I can
7 tell you after reading the proposed rule it has
8 the potential to impact every aspect of our
9 family's operation and others like it by
10 regulating potentially every water feature on my
11 land. What's worse is the ambiguity in the
12 proposed rule that makes it difficult, if not
13 impossible, to determine just how much our family
14 ranch will be affected. This ambiguity places all
15 landowners in a position of uncertainty and
16 inequity. Because of this, I ask the EPA and Army
17 Corp of Engineers to withdraw the proposed rule
18 and sit down with farmers and ranchers to discuss
19 our concerns and viable solutions before any
20 additional action.
21 I would like to use my time here this
22 morning to show you why this rule is problematic
23 for operations like mine and show you some
24 pictures to help color the issues.
25 Welcome to just outside Anselmo, Nebraska.
38
1 In this picture you will see the home place for
2 our ranching operation. There are several homes
3 on this site since we operate the ranch alongside
4 two additional generations of family members. Our
5 ranch sits in the pristine Nebraska Sandhills.
6 The Sandhills are a unique ecosystem of
7 mixed-grass prairie that has grown on top of
8 stabilized sand dunes. We use cattle to manage
9 this land to ensure this unique ecosystem is
10 protected and maintained rather than deteriorating
11 and literally blowing away
12 This is an aerial photo that's been zoomed
13 out slightly. What look like waves are actually
14 the rolling hills of sand dunes, natural
15 depressions, draws, and dry ruts that may have
16 water in them seasonally. What you cannot see is
17 the unique feature of the Sandhills which is its
18 close connection to groundwater supplies. This
19 close connection makes it possible for grass to be
20 grown on top of the sand dunes. And at times
21 ponds can literally spring up in these depressions
22 of the Sandhills out of nowhere because of this
23 connection. However, within a matter of months,
24 and perhaps for several years, the water may be
25 gone again. As you can see, currently there is no
39
1 water here. But the question is, is that dried up
2 natural depression a WOTUS? Are my seasonally
3 flowing draws an ephemeral stream? There's no
4 water in the draw, but the proposed rule suggests
5 these features could be jurisdictional. If so,
6 will I be required to obtain a permit to conduct
7 daily activities across my entire property, such
8 as building a fence or moving cattle from pasture
9 to pasture?
10 Here's a pond with water in it and one
11 without. This water occurs naturally. Cattle and
12 wildlife utilize this water. And producers want
13 to be able to allow cattle to use this
14 naturally-occurring water body. If this pond is
15 jurisdictional under the WOTUS rule, would cattle
16 or wildlife waste in the water constitute a
17 discharge that I would need a permit for? It may
18 sound silly to say that but in my interpretation,
19 and many others' interpretations, it suggests just
20 that.
21 Here's a photo of the same ponds where you
22 can see they are near an eroded channel that runs
23 to the Middle Loop River. At times, water does
24 run off into this channel. Here's where it gets
25 put all together and see how the proposed rule
40
1 expands federal jurisdiction. In the top right
2 corner is the Middle Loop River. This river is an
3 interstate water and falls under federal
4 jurisdiction. That's uncontested. Now just to
5 the left, the eroded channel, the beige squiggly
6 line, now it's questionable whether this channel
7 would have been considered federal water prior to
8 the WOTUS rule. But now will most likely be
9 deemed a tributary that meets the definition of a
10 WOTUS. And under the proposed rule, every water
11 body adjacent to a tributary is a WOTUS too. It
12 appears to me they would be federal waters under
13 the proposed rule. If they are indeed "Waters of
14 the U.S.," I will need permits to conduct everyday
15 account activities through those waters. Permits
16 that will cost my family time and money. We will
17 continue to do our part for the environment but
18 this ambiguous and expansive proposed rule does
19 not help us achieve that.
20 We look forward to working with the
21 Environment and Public Works Committee to insure
22 we have the ability to do what we do best, produce
23 the world's safest, most nutritional, abundant and
24 afford able protein, while giving the consumers
25 the choice they deserve. Together we can sustain
41
1 our country's excellence and prosperity and insure
2 the viability of our way of life for future
3 generations.
4 I appreciate the opportunity to visit with
5 you today. Thank you.
6 SENATOR FISCHER: Thank you very much,
7 Barb, for providing that perspective on the
8 agricultural industry.
9 Next we have Mr. Donald Wisnieski. He is
10 president of the Nebraska State Home Builders
11 Association. A native of Norfolk, Don is the
12 owner of Wisnieski Construction which has served
13 the Norfolk community since 1986, primarily
14 focusing on custom home building.
15 Don, you are to be commended for your
16 community service and operating that successful
17 small business for almost three decades. When
18 you're ready, please begin your testimony
19 MR. WISNIESKI: Thank you.
20 Senator Fischer, thank you for the opportunity to
21 testify today.
22 As stated, my name is Don Wisnieski. I'm
23 the president of Wisnieski Construction located in
24 Norfolk. I also serve as the 2015 President of
25 the Nebraska State Home Builders Association.
42
1 Home builders have been an advocate for the
2 Clean Water Act since its inception. We have a
3 responsibility to protect the environment. And it
4 is a responsibility I know well because I must
5 often obtain permits for building projects. When
6 it comes to federal regulatory requirements, what
7 I desire as a small business owner is a permitting
8 process that is consistent, timely, and focused on
9 protecting true aquatic resources.
10 Landowners have been frustrated with the
11 continued uncertainty over the scope of the Clean
12 Water Act over waters of the United States. There
13 is a need for additional clarity, and the
14 administration recently proposed a rule intended
15 to do just that. Unfortunately, that proposed
16 rule falls short. There is no certainty under
17 this proposal, just the expansion of federal
18 authority. These changes will not even improve
19 water quality, as the rule improperly encompasses
20 waters that are already regulated at the state
21 level. The rule would establish broader
22 definitions of existing regulatory categories such
23 as tributaries and regulates new areas that are
24 not currently federally regulated, such as an --
25 adjacent non-wetlands, repairing areas,
43
1 floodplains, and other water areas. And these
2 changes are far reaching, affecting all Clean
3 Water Act programs but no -- but provides no
4 additional protections for most of these areas
5 already comfortably resting under the state and
6 local authorities.
7 I'm also concerned that the terms are
8 overly broad, giving the agencies broad authority
9 to interpret them. I need to know the rules. I
10 can't play a guessing game of, is it
11 jurisdictional. We don't need a set of new vague
12 and convoluted definitions. Under the Clean Water
13 Act, Congress intended to create a partnership
14 between federal agencies and the state governments
15 to protect our nation's water resources. There is
16 a point where federal authority ends and the state
17 authority begins. And the Supreme Court has twice
18 affirmed that the Clean Water Act places limits on
19 federal authority over waters. And the states do
20 regulate the waters under their jurisdiction.
21 Nebraska takes its responsibilities to protect its
22 natural resources seriously.
23 If you look around the country, you'll find
24 that many of the states are protecting their
25 natural resources more aggressively since the
44
1 passage of the Clean Water Act in 1972.
2 The proposed rule will have significant
3 impacts on my business. Construction projects
4 rely on efficient, timely, and consistent
5 permitting procedures and review processes under
6 the Clean Water Act programs. An onerous
7 permitting process could delay projects which
8 leads to greater risk and higher costs. Also,
9 more federal permitting actions will trigger
10 additional statutory reviews by outside agencies
11 under laws including the Endangered Species Acts,
12 the National Historic Prevention Act, the National
13 Environmental Policy Act. It's doubtful that
14 these agencies will have the equipment to handle
15 these inflow of additional permitting requests.
16 I am uncertain of what the environmental
17 benefits are gained by this paperwork. But I am
18 certain of the massive delays of permittings that
19 will result. The cost of obtaining Clean Water
20 Act permits range from close to 29,000 all the way
21 up to close to $272,000. Permitting delays will
22 only increase these costs and prevent me from
23 expanding my business and in hiring more
24 employees.
25 The agencies have not considered the
45
1 unintended consequences of this rule. Under this
2 proposed rule, Low Impact Development stormwater
3 controls could be federally jurisdictional. Many
4 of our builders voluntarily select LID controls,
5 such as rain gardens and swells for the general
6 benefit of our communities. This rule would
7 discourage these voluntary projects if they
8 require federal permits.
9 This proposed rule does not add new
10 protections for our nation's water resources, it
11 just shifts the regulatory authority from the
12 states to the federal government. The proposed
13 rule is inconsistent with previous Supreme Court
14 decision and expands the scope of waters to
15 federally regulated beyond what Congress
16 envisioned. Any final rule should be
17 considered -- or consistent with the
18 Supreme Court's decisions, provide understandable
19 definitions, and preserve the partnership between
20 all levels of government. All are sorely lacking
21 here.
22 I want to thank you for the opportunity to
23 testify. And I do look forward to any questions
24 you may have, Senator. Thank you.
25 SENATOR FISCHER: Thank you, Don.
46
1 I would like to welcome Mr. John Crabtree.
2 Mr. Crabtree is the Media Director for the Center
3 of Rural Affairs which has accomplished
4 commendable work on rural development
5 opportunities throughout our state.
6 I would note that, as is customary for the
7 Senate Environment and Public Works Committee
8 hearings, we work in a bipartisan manner to select
9 witnesses. And with ranking member Senator
10 Barbara Boxer, our next two witnesses are Minority
11 witnesses.
12 Mr. Crabtree, please begin your testimony
13 when you are ready.
14 MR. CRABTREE: Thank you,
15 Senator Fischer, and good morning.
16 And, yes, I thank the members of the
17 Committee and the ranking members and the staff
18 for working with me to -- to invite me here. But
19 I thank you for inviting me here, too. I really
20 appreciate you bringing this hearing to Nebraska.
21 My name, as you said, is John Crabtree. I
22 live and work in the Northeast Nebraska small town
23 of Lyons, population 851. I'm testifying today on
24 behalf of the Center for Rural Affairs where I
25 work as Media Director and rural public policy
47
1 advocate.
2 Since its founding in 1973, the Center's
3 resisted the role of advocating for the interests
4 of any particular group. Instead, we've chosen to
5 advance a set of values, values that we believe
6 reflect the best of rural and small town America.
7 And we deeply believe that water quality is one of
8 those -- that clean water is one of those rural
9 values.
10 The need for this rule-making process arises
11 out of the chaos, confusion and complexity
12 surrounding Clean Water Act enforcement as a
13 result of Supreme Court decisions in 2001 and
14 2006. The proposed rule focuses on reducing that
15 confusion, and the Center for Rural Affairs is
16 encouraged by the process so far. We encourage
17 the EPA and the Army Corp of Engineers to continue
18 moving this rule-making process forward.
19 It's worth clarifying that the Center is
20 supportive of the formal rule making process as
21 it's provided the opportunity to craft a stronger
22 and more suitable rule through increased citizen
23 input and engagement. While no proposed rule is
24 perfect, we believe the rule-making process will
25 improve this rule, which is why we provided
48
1 detailed and substantive comments to the EPA and
2 Corps during the public commentary period. And we
3 believe that an improved rule can and should
4 reduce confusion and provide clarity for regulated
5 entities, including ranchers and farmers, and
6 ultimately improve the quality of the nation's
7 waters for the hundreds of us who utilize and
8 depend upon clean water from our rivers, lakes,
9 and streams.
10 Clean water is vital to farming and ranching
11 and small towns. Water for livestock, irrigation,
12 and other purposes is crucial to the day-to-day
13 operations of farms and ranches. And farmers and
14 ranchers are the tip of the spear when it comes to
15 preserving water quality in America because much
16 of the surface water of the U.S. falls first on
17 American farms and ranches.
18 Streams and wetlands create economic
19 opportunity in small town America through hunting,
20 fishing, birding, recreation, tourism, farming,
21 ranching and small manufacturing. Farmers,
22 ranchers and America's small towns depend heavily
23 on water and our neighbors downstream count on us
24 to preserve the quality of that water for their
25 use as well.
49
1 Now, despite the assertions that understate
2 the economic benefit and vastly overstate the cost
3 of implementing this proposed rule, the true cost
4 of implementation is estimated to range from
5 160 to 278 million. And according to multiple
6 econometric models, the estimated economic
7 benefits of implementing the proposed rule range
8 from 390 to 510 million, or likely double the
9 costs.
10 Clean water is crucial here in Nebraska too,
11 of course. And vulnerable surface waters are
12 prevalent in Nebraska. EPA estimates that
13 52 percent of Nebraska streams have no other
14 streams flowing into them, and that 77 percent do
15 not flow year-round. Under varying
16 interpretations of the most recent Supreme Court
17 decision, these smaller water bodies are among
18 those for which the extent of Clean Water Act
19 protections has been questioned.
20 EPA has also determined that 525,000 people
21 in Nebraska receive some of their drinking water
22 from areas containing these smaller streams and
23 that at least 197 facilities located on such
24 streams currently have permits under the Clean
25 Water Act and other federal statutes regulating
50
1 pollution discharges. In addition, the Nebraska
2 Game and Parks Commission has estimated that
3 nearly 829,000 acres of wetlands in the state
4 could be considered so-called isolated waters
5 particularly vulnerable to losing those
6 safeguards.
7 The "Waters of the U.S." rule is the
8 product -- excuse me, I'm sorry, I lost my place
9 there.
10 Chief Justice Roberts has specifically said
11 that rule-making would most likely be required to
12 provide necessary clarification of Clean Water Act
13 jurisdiction. This has been a rigorous
14 rule-making process. EPA and the Army Corps has
15 conducted extensive outreach to -- as I said,
16 conducted extensive outreach and received close to
17 one million public comments on the proposed rule,
18 including from the Center of Rural Affairs and
19 thousands of other organizations and hundreds and
20 thousands of individuals. An estimated 87 percent
21 of those comments support the rule.
22 The "Waters of the U.S." rule goes to great
23 lengths to ensure that farmers and ranchers
24 benefit from preserving water quality but are not
25 overly burdened with the rule's implementation.
51
1 All the historical exclusions and exemptions for
2 farming and ranching are preserved, including
3 those for normal farming and ranching practices.
4 And that means that dramatic rhetoric such
5 as statements that farmers and ranchers will need
6 a permit to move cattle across a wet field or
7 stream are absolutely false. Likewise, public
8 statements that farm ponds would -- by detractors
9 is supported by the -- despite public statements
10 to the contrary, farm ponds would continue to fall
11 under the longstanding exemption for farm ponds in
12 the Clean Water Act.
13 In the final analysis, streams that only
14 flow seasonally or after rain have been protected
15 by the Clean Water Act since it was enacted in
16 1972. As well they should be, since more than
17 60 percent of streams nationwide do not flow
18 year-round, and yet those very same streams
19 contribute to the drinking water for 117 million
20 Americans.
21 Again, I want to thank you, Senator, for
22 having this hearing and for inviting me here
23 today.
24 Just my closing statement, my last comment,
25 here in the west, we do understand that there's a
52
1 lot of truth to the old joke, whiskey is for
2 drinking and water is for fighting. Water is
3 life, for people, crops, livestock, and wildlife
4 as well as farms, ranches, business and industry.
5 It's in all our interest to protect this most
6 vital of our natural resources.
7 We believe the EPA and Army Corps of
8 Engineers should continue to listen to concerns,
9 make substantive improvements to the rule, and
10 then move forward to finalization. Thank you.
11 SENATOR FISCHER: Thank you,
12 Mr. Crabtree.
13 Next, Mr. Wesley Sheets will be a witness
14 for the Minority as well. Wes is the Nebraska
15 National Director and served on the National
16 Executive Board of the Izaak Walton League of
17 America. Mr. Sheets worked for 32 years for the
18 Nebraska Game and Parks Commission, and I thank
19 him for his service to Nebraska.
20 So welcome, Wes. And your testimony,
21 please.
22 MR. SHEETS: Thank you, Senator Fischer,
23 and members and staff of the Committee on
24 Environment and Public Works. I thank you for the
25 opportunity to provide comments here today.
53
1 My name is Wes Sheets, and I do live here in
2 Lincoln, Nebraska. I am testifying on behalf of
3 the Izaak Walton League of America, which is one
4 of the nation's oldest recreational and
5 conservation organizations. The Izaak Walton
6 League was formed back in 1922 by a group of
7 outdoor specialists that were concerned with the
8 water pollution impacting the health of our fish
9 and wildlife and other natural resources. The
10 founders of our organization understood that clean
11 water and healthy wetlands are essential to robust
12 populations of fish, and ducks, and other wildlife
13 and, in turn -- aha -- and, in turn, to enjoyable
14 and successful days in the field pursuing them.
15 I am active in all levels of the
16 Izaak Walton League, as the treasurer of the local
17 chapter, as the -- I'm the national director for
18 Nebraska, and I recently became a member of the
19 League's executive board. Today I'm representing
20 our nearly 2,000 members here in Nebraska and our
21 other 45,000 members across the nation. Our
22 members are all from outdoor enthusiasts who hunt,
23 fish, and participate in recreational shooting,
24 boating, and many other outdoor activities.
25 My working career that Senator Fischer
54
1 alluded to, I spent 32 years with the Nebraska
2 Game and Parks Commission as a fisheries
3 biologist, aquatic scientist, and finally
4 finishing the career as the Agency Assistant
5 Director for fisheries, wildlife and law
6 enforcement. I was very privileged back in the
7 early '70s and mid '70s to participate as an
8 agency representative as the State of Nebraska
9 began the establishment of its first water quality
10 criteria standards under the newly-passed Nebraska
11 Environmental Protection Act.
12 It was a treat to see Senator Smith here in
13 the audience this morning, and I thank him for
14 helping get that process started.
15 I do want to start by acknowledging the
16 interests and concerns of all my colleagues who
17 are testifying here in opposition to this rule.
18 The Izaak Walton League has a long history of
19 working with farmers and ranchers, as well as
20 other industries, on solutions for the
21 conservation issues and we pledge to continue to
22 do so.
23 League members are members -- are farmers
24 and ranchers, or they are employed by other
25 industries represented here. And many of us come
55
1 from rural and agricultural communities. I myself
2 grew up on a dairy farm down in our neighboring
3 state to the south.
4 We recognize the importance of clean water,
5 as I hope everyone in this room also does. Clean
6 water is fundamentally essential to all life, from
7 humans, to wildlife, to fish and plants. Congress
8 has charged the Environmental Protection Agency
9 with cleaning up America's waters and with keeping
10 it clean. To state the obvious, water flows
11 downstream and can carry sediment, nutrients, and
12 other pollutants with it. There is no line in the
13 watershed above which water and pollutants do not
14 flow downstream, at least to my knowledge. If
15 landowners and businesses below some arbitrary
16 line in the watershed of connected waters would be
17 required to contribute to clean waters, while
18 those above the arbitrary line could send
19 sediments, nutrients and other articles downstream
20 without concern for those impacts, those living
21 upstream would certainly have an unfair and
22 unnecessary economic advantage, I would submit.
23 This highlights the current confusion, and
24 that is also why so many groups have asked the
25 agencies for a clarifying ruling. Science is
56
1 irrefutable that watershed waters are considered
2 in the rules that are connected. All waters are
3 important, and that includes the ephemeral waters
4 that do not flow all year long perhaps. The rule
5 is important to Nebraskans for very many reasons,
6 not the least of which is the maintenance of
7 fisheries and wildlife habitat, flooding
8 mitigation, water-based recreation, industrial
9 need, and many more life needs. Drinking water
10 tops the many lists. And John just recounted some
11 of the statistics that I wanted to use about how
12 many folks depend on our stream water supplies for
13 their drinking water.
14 Clean water is exactly the type of issue
15 where a federal rule makes particular sense. The
16 vast majority of U.S. waters are part of an
17 interstate network that drains to one of the
18 oceans. What we put into upstream Nebraska waters
19 affects not only Nebraskans but it does affect the
20 hunting and fishing opportunities of people all
21 the way down to Louisiana and into the Gulf of
22 Mexico.
23 The muddying and pollution of waters
24 directly hurts hunting and fishing and all of the
25 businesses that benefit from them. Approximately
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1 47 million hunters and anglers in Nebraska
2 generate over $200 billion in economic activity
3 each year. The rule needs to seek to clarify
4 which waters are covered in this endeavor, and
5 making the process more efficient and effective,
6 and it is a better way to address the concerns
7 about how the Clean Water Act is applied.
8 Nebraskans care as much about clean water
9 and their downstream neighbors as anyone else in
10 the country, and we care just as much about our
11 traditions of fishing and hunting and depend on
12 clean water.
13 Please give the agencies a chance to present
14 a final rule.
15 And I thank you for the opportunity,
16 Senator, for being present here today.
17 SENATOR FISCHER: Thank you, Wes. Good
18 to see you.
19 Finally, I'm pleased to welcome our last
20 witness, Mr. Don Blankenau. Mr. Blankenau is a
21 water and natural resources attorney whose
22 impressive career has enabled him to become a
23 nationally recognized water policy expert.
24 Before we hear from Mr. Blankenau, I would
25 tell you that I'm entering into today's hearing
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1 record comments he filed on behalf of the Nebraska
2 Association of Resource Districts, Nebraska League
3 of Municipalities, and the Nebraska Groundwater
4 Management Coalition.
5 Mr. Blankenau, thank you for testifying.
6 You may begin when ready.
7 MR. BLANKENAU: Thank you, Senator.
8 Members of the Committee and staff, we
9 appreciate the opportunity to testify this
10 morning.
11 Again, my name is Don Blankenau, and I am an
12 attorney based in Lincoln, Nebraska specializing
13 in water and natural resources law. My practice
14 has allowed me to engage in water cases in the
15 states of Nebraska, Arizona, North Dakota,
16 South Dakota, Missouri, Georgia, Florida and
17 Alabama. I appear here today to offer my thoughts
18 regarding the proposed rule. My colleague,
19 Vanessa Silke, and I have previously filed formal
20 comments on behalf of this rule regarding
21 compliance to include the Nebraska Groundwater
22 Management Coalition, the Nebraska Association of
23 Resources Districts, the League of Nebraska
24 Municipalities, and the Tri-Basin Natural
25 Resources District and the Lyman-Richey
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1 Corporation with the sand and gravel mining
2 operation. As you've noted, Senator, those
3 comments are included in the record today, but
4 I'll offer some additional comments.
5 I'd like to begin with a brief anecdote that
6 I think highlights the philosophical perspective
7 of the federal proponents of this rule. Some four
8 years ago I was at a meeting with the -- with an
9 employee of the Army Corps of Engineers when we
10 began a discussion concerning groundwater
11 management. To my surprise, this employee stated
12 that it was time for the federal government to
13 assert more control over groundwater. I responded
14 to that statement with the observation that the
15 United States Supreme Court in a Nebraska case,
16 Sporhase versus Nebraska, ex rel. Douglas, in
17 1982, had determined that groundwater was an
18 article of interstate commerce within the meaning
19 of the Constitution. And I went on to explain
20 that as an article of interstate commerce, any
21 increased federal control was the sole purview of
22 Congress and could not be undertaken by an agency
23 absent expressed Congressional authorization. The
24 Corps employee simply responded, we can do a lot
25 with our rules, and if Congress won't act, we
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1 will. The proposed rule I think is the product of
2 that kind of thinking.
3 Whether a rule is good policy is one
4 question. Whether it's legal is another. And in
5 my view, this proposed rule is neither.
6 Article 1, Section 8, Clause 3 of the Constitution
7 of the United States contains the "commerce
8 clause" that authorizes Congress alone to make
9 laws governing interstate commerce. Historically,
10 it was the interstate trafficking of goods and
11 services on the nation's interstate waters that
12 served as the legal lynchpin to Congressional
13 control over those waters. In other words,