Hardin Hall, Room 107 University of Nebraska, East Campus

Unofficial Statement












           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








           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.








          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





































           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











           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











           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.











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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











           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.











           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











           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











           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











           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











           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.











           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.)






           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











           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











           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.











           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











           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











           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











           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











           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.











           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











           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











           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











           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.











           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,











           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











           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











           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.











           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











           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











           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.











           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











           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.











           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











           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.











           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











           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











           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











           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











           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











           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











           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











           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