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94–983 PDF 2015

S. HRG. 114–23 

IMPACTS OF THE PROPOSED WATERS OF 

THE UNITED STATES RULE ON STATE AND 

LOCAL GOVERNMENTS AND STAKEHOLDERS 

FIELD HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 14, 2015—Lincoln, NE 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.fdsys.gpo.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

(III) 

C O N T E N T S 

Page 

MARCH 14, 2015 

OPENING STATEMENTS 

Fischer, Hon. Deb, U.S. Senator from the State of Nebraska ............................. 1 

Sasse, Benjamin E. , U.S. Senator from the State of Nebraska .......................... 125 

WITNESSES 

Lavene, Justin D., Chief of the Agriculture Environment and Natural Resources Bureau Nebraska Attorney General’s Office ........................................ 3 

Prepared statement .......................................................................................... 6 

Borgeson, Mary Ann, Chair, Douglas County Board of Commissioners ............. 14 

Prepared statement .......................................................................................... 17 

Cooksley, Barbara, Owner Cooksley Ranch, Anselmo, NE .................................. 30 

Prepared statement .......................................................................................... 33 

Wisnieski, Donald, Owner, Wisnieski Construction, Inc. ..................................... 37 

Prepared statement .......................................................................................... 39 

Crabtree, John, Center for Rural Affairs, Lyons, NE ........................................... 48 

Prepared statement .......................................................................................... 51 

Sheets, Wesley F., Executive Board Member and Nebraska National Director, 

Izaak Walton League of America ........................................................................ 55 

Prepared statement .......................................................................................... 57 

Blankenau, Don, Attorney for Nebraska Association of Resources Districts 

and the League of Nebraska Municipalities ...................................................... 62 

Prepared statement .......................................................................................... 64 

ADDITIONAL MATERIAL 

Letters: 

Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) ................... 126 

Koley Jessen Attorneys: 

Docket ID No. EPA-HQ-QW-2011-0880 Definition of ′′Water of the 

United States′′ Under the Clean Water Act ........................................ 127 

Field Hearing on the preposed Waters of the U.S. Rule (WOTUS) 

Senate Committee on Environment and Public Works ...................... 137 

Statement of the National Association of Counties Policy Brief: New ′′Waters 

of the United States′′ Definition Released ......................................................... 139 

(1) 

IMPACTS OF THE PROPOSED WATERS OF 

THE UNITED STATES RULE ON STATE AND 

LOCAL GOVERNMENTS AND STAKEHOLDERS 

SATURDAY, MARCH 14, 2015 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Lincoln, NE 

The committee met, pursuant to notice, at 10:00 a.m. in the 

Harden Hall Auditorium, University of Nebraska-Lincoln, Hon. 

Deb Fischer presiding. 

Present: Senator Fischer. 

OPENING STATEMENT OF HON. DEB FISCHER, 

U.S. SENATOR FROM THE STATE OF NEBRASKA 

Senator FISCHER. Good morning. Good morning everyone. This 

hearing will come to order. 

I am pleased to bring the U.S. Senate to Nebraska and convene 

this hearing of the Senate Environment and Public Works Committee. Today’s hearing is titled Impacts of the Proposed Waters of 

the United States Rule on State and Local Governments and 

Stakeholders. 

I believe Nebraska is the perfect place to hold this hearing. Our 

surface water and groundwater are so important to this State. Nebraskans take great pride in their stewardship of these precious resources and they are rightly concerned with the Federal Government’s attempt to seize control. 

I am pleased to hold this hearing at our very own land-grant university. 

So, to begin, I would like to say a special thank you to the University of Nebraska for providing today’s accommodations. 

I would also like to thank our staff that is present today. I have 

two of my Washington staff members present, Michelle Weber, who 

is from Blue Hill, Nebraska, and Jessica Clowser, who is from Seward, Nebraska. They are tucked back here around the corner. But 

I am happy that they were able to come home and serve here at 

the Committee to help me. 

We also have two Committee staff people that our Chairman, 

Senator Jim Inhofe of Oklahoma has provided, Laura Acheson and 

Lauren Sturgeon. So thank you for being here. 

And Senator Ben Cardin from Maryland on the Majority side has 

sent a staff person as well, Mae Stevens. 

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So welcome to all of you. I’m excited to welcome a diverse group 

of Nebraska’s stakeholders this morning to share their perspectives 

on the proposed rule to revise the definition of waters of the United 

States for all Clean Water Act programs. This hearing will allow 

us to explore the issue in depth and determine the impact this rule 

would have on our State and on Nebraskan families. Last year, the 

EPA and the Army Corps of Engineers proposed a rule that redefines Federal regulatory reach to include everything from farm 

ponds and drainage ditches to low-lying areas that are dry for most 

of the year. This proposal is a massive expansion of Federal jurisdiction beyond congressional intent. 

Congress limited the Federal Government’s regulatory authority 

in the Clean Water Act to navigable waters. And the Supreme 

Court confirmed these limitations in the SWANCC and Rapanos 

cases. The Court expressly rejected attempts to expand Federal 

control over water, and made it clear that all water is not subject 

to Federal jurisdiction under the Clean Water Act. Instead of following the law, this administration has decided to twist the rule’s 

definition to include almost every drop of precipitation that could 

eventually make it to navigable water. This was not the intent of 

the Clean Water Act. 

Nebraskans take seriously their role in protecting and conserving 

our natural resources. Responsible resource management, including 

careful stewardship of our water, is the cornerstone of our state’s 

economy. This is a vital interest to Nebraska’s families, Nebraska 

businesses, our agricultural industry, and our local communities. 

Nebraskans understand that the people closest to the resource 

are also those who are best able to manage it. 

We are blessed to live in a State with 23 local Natural Resource 

Districts served by board members from those local communities, 

and to have landowners and communities that truly care about 

clean water and a healthy and productive environment. That’s why 

it came as no surprise that Nebraskans were so offended when the 

Federal Government made its proposal without consulting State 

and local authorities, without considering their rights, and without 

realistically examining the potential impacts. I am grateful that 

Nebraskans were quick to recognize the far-reaching consequences 

of this rule, and to organize a group effort to raise the alarm. The 

common sense Nebraska coalition should be commended for its efforts to highlight the sweeping implications of this rule on everyone, from county officials trying to build a road, to a farmer managing rainwater runoff. 

Clean Water Act permits are complex, time consuming and very 

expensive. They leave landowners and our local governments vulnerable to citizen suits. The proposal would make it difficult to 

build anything, whether it’s a home for a family, a factory to provide needed jobs, or highways and bridges necessary to transport 

our people and goods. 

I am entering into the hearing record a letter and analysis from 

Mike Linder, who served as the Director of the Nebraska Department of Environmental Quality from 1999 to 2013. He states that 

the rule is an erosion of cooperative federalism that will harm the 

success of Nebraska’s conservation practices and programs. 

3 

Today’s hearing will begin with a witness who can speak to the 

importance of the state’s water protection programs and cooperative federalism. 

Assistant Attorney General Justin Lavene is the chief of the Agriculture Environment and Natural Resources Bureau at the Nebraska Department of Justice. A native of Bertrand, Nebraska, Mr. 

Lavene supervises the litigation and legal support for the Nebraska 

agencies and boards, including the Department of Environmental 

Quality, Department of Natural Resources, Department of Agriculture, Game and Parks Division and the Environmental Trust. 

Mr. Lavene, I thank you for being here. And when you are ready, 

please begin your testimony. 

STATEMENT OF JUSTIN D. LEVENE, CHIEF OF THE AGRICULTURE ENVIRONMENT AND NATURAL RESOURCES BUREAU, NEBRASKA ATTORNEY GENERAL’S OFFICE 

Mr. LEVENE. Thank you, Senator Fischer. Chairman Inhofe, and 

Ranking Member Boxer, Members of the Senate’s Committee on 

Environment and Public Works, my sincere thanks for the opportunity to present the Nebraska Attorney General’s Office concern 

regarding the joint proposal by the United States Army Corps of 

Engineers and the Environmental Protection Agency to define the 

Clean Water Act’s use of the phrase ‘‘waters of the United States’’ 

in a manner that would appear to dramatically expand the scope 

of Federal authority under the Act. The Nebraska Attorney General’s Office, alongside a number of our sister states, previously offered comments to the Agencies on the proposed—on the proposed 

expansive definition. The Attorneys General apprised the Agencies 

of those aspects of the proposed definition which are inconsistent 

with the limitations of the Clean Water Act, as interpreted by the 

U.S. Supreme Court, as well as the outer boundaries of Congress’s 

constitutional authority over interState commerce, and the principal of cooperative federalism as embodied in the Act. However, it 

is not certain that those concerns will truly be considered, which 

is why we appreciate the opportunity to present additional testimony here today. 

Congress intended the Clean Water Act to recognize, preserve, 

and protect the primary responsibilities and rights of the states to 

plan and—the development and use of land and water resources. 

Nonetheless, EPA, along with the Corps, persistently violates this 

principal of cooperative federalism in practice and now seeks to 

codify a significant intrusion on the states’ statutory obligations 

with respect to intraState water and land management. Despite 

Nebraska’s consistent and dutiful protection of its land and water 

resources, in a manner consistent with local conditions and needs, 

the Agencies seek to further their disregard for State primacy in 

the area of land and water preservation, and instead make the 

Federal Government the primary regulator of much of the intraState waters and sometimes-wet land in he United States. The 

Agencies may not arrogate to themselves the traditional State prerogatives over intraState waters and land use; after all, there is no 

Federal interest in regulating water activities on dry land and any 

activities not connected to interState commerce. Instead, States, by 

virtue of being closer to communities, are in the best position to 

4 

provide effective, fair, and responsive oversight of water use, and 

have consistently done so. 

The Agencies propose a single definition of the phrase ‘‘water of 

the United States’’ for all of the Act’s programs. Currently, there 

is a difference in use and application of the term ‘‘water of the 

United States’’ for various sections of the Act. In Nebraska, since 

the 1970’s, EPA has delegated authority to the Department of Environmental Quality to implement all programs except Section 404 

dredge and fill, and Section 311 oil spill programs. Thus, the Section 402, National Pollutant Discharge Elimination System, or 

NPDES program, the Section 303, water quality standards and 

total maximum daily load program, and the Section 401, State 

water quality certification process, are all administered at the 

State level. This same arrangement exists in all but a handful of 

states. 

The continued State administration of the NPDES program requires the Department of Environmental Quality to have an equally stringent regulatory structure, including its own definition of jurisdictional waters. Accordingly, the Department has administered 

the various Clean Water Act programs using its own ‘‘waters of the 

state’’ definition for nearly 40 years with EPA approval. However, 

the regulatory approach used by the Agencies to develop a single 

definition of ‘‘waters of the United States,’’ which will affect all the 

Clean Water Act programs, is modeled after the existing guidance 

provided by the Agencies and the U.S. Supreme Court which was 

limited on its face to the jurisdictional determinations for federally 

administered dredge and fill programs found in the Clean Water 

Act of 404. 

When applied in the context of other Clean Water Act programs, 

the proposal creates significant cost and confusion, it increases unnecessary bureaucracy, and infringes on State primacy, and exposes agricultural producers to new liability. During the 40 years 

of State implementation of the ‘‘waters of the state’’ requirement, 

the Department has applied the definition to Section 402 permitting decisions thousands of times. In Nebraska, livestock producers 

in particular are subject to the requirements of either an individual 

or the general NPDES discharge permit. In accordance with the 

terms of their permits, which are often crafted in reliance on the 

definition of the ‘‘waters of the State,’’ these producers often construct waste control facilities and mitigating land features, such as 

berms or waterways, to help divert runoff from waters of the State. 

If the proposed definition of ‘‘waters of the United States’’ is suddenly applied to the state-administered Section 402 program, the 

effectiveness of all the Department’s permitting efforts is brought 

into question. The land features constructed by producers in a 

good-faith effort to comply with the permitting requirements may 

constitute a tributary or adjacent water. Moreover, long-exempted 

operations may unknowingly find themselves subject to Clean 

Water Act jurisdiction. 

Similar increased administrative burdens may result with regard 

to the states’ administration of Section 401, State water quality 

certifications, and Section 303, water quality standards. As the 

scope of Federal jurisdictional waters grows larger with the promulgation of the proposed definition, the number of Federal actions 

5 

requiring Section 401 certification of the State and the number of 

waters requiring the establishment of Section 303 standards and 

TMDLs will likely also increase. The Department of Environmental 

Quality will be responsible for shouldering this burden leading to 

increased budget and resource demands. 

The Agencies suggest that the rule does no more than clarify 

what the Supreme Court has already declared with respect to the 

scope of Federal authority under the Clean Water Act. By now, the 

Committee members are likely familiar with the Supreme Court’s 

holdings in Solid Waste Agency of Northern Cook County versus 

the Army Corps of Engineers, or SWANCC case, and Rapanos 

versus the United States. Respectively, the holdings in these cases 

confirmed the limits of the Federal Government’s, and the primacy 

of the states, over intraState waters and required, at the least, a 

demonstrated significant nexus between nontraditional and traditionally jurisdictional waters before the agency may assert its authority. 

However, the proposed categorical inclusion of broadly defined 

tributaries and adjacent waters looks to sweep a large mass of previously unregulated land within the ambit of Federal jurisdiction. 

And for any that might remain beyond the Agencies’ reach per se, 

the catch-all is proposed to allow case-by-case determinations for 

any water meeting the vaguely defined significant nexus test. The 

effect of these newly included categories of land and water features 

is not clarity, but rather an inconsistent and overbroad interpretation of the Supreme Court’s holdings and the limits of the Act 

which places virtually every river, creek and stream, along with 

vast amounts of neighboring lands, under the Agencies’ Clean 

Water Act jurisdiction. Many of these features are dry the vast majority of time and are already in use by farmers, developers, or 

homeowners. 

More importantly, the imposition of Clean Water Act requirements on waters and lands far removed from interState commerce 

or navigable waters is harmful not only to the states themselves, 

but to the farmers, developers and homeowners. Ninety-two percent of Nebraska’s 77 thousand square miles of area is used for agricultural production. The proposal treats numerous isolated bodies 

of water as subject to the agencies’ jurisdiction resulting in landowners having to seek permits or face substantial fines and criminal enforcement actions. Nor must lands have water on it permanently, seasonly, or even yearly to have it be a ‘‘water’’ regulated 

under the Act. And if a farmer makes a single mistake, perhaps 

not realizing that his land is covered under the Clean Water Act 

or Rapanos, he or she can be subject to thousands of dollars of fines 

and even prison time. 

Members of the Committee, we ask that Congress continue to 

work to ensure that the EPA and the Corps recognize, preserve, 

and protect the primary responsibilities and rights of the states to 

plan the development and use of land and water resources in our 

State. Thank you for the opportunity to be heard. 

[The prepared statement of Mr. Lavene follows:] 

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94983.001
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94983.002
8 


94983.003
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Senator FISCHER. Thank you, Mr. Lavene. Now I’d like to go 

through a series of questions with you, if we could. 

Mr. LEVENE. OK. 

Senator FISCHER. I have a number of questions here and I would 

appreciate your response to those. 

Can you talk about the role of the State in protecting water quality and administering the water protection programs, and what is 

that cooperative federalism that we hear about and why is it so important that states have that strong role in water protection? 

Mr. LEVENE. Sure. 

With regard to the State protecting water, as I kind of mentioned 

in my testimony, and this kind of gets into, obviously, the cooperative federalism issue, we have a situation where under the Clean 

Water Act Federal Government regulates a portion of the Act’s responsibilities. And the State of Nebraska separately administers 

some of the other programs. As I stated before, the Department of 

Environmental Quality in the State of Nebraska regulates discharge permits under Section 402, water quality standards, and 

total maximum daily loads under 303, and also water quality certifications under—under Section 401. Again, it’s a shared responsibility that is—it’s basically the function of the cooperative federalism. And that is basically shared responsibility between State 

and Federal Governments to implement these laws. Now, part of 

the reason that occurs is that both the Federal Government and 

the states have somewhat separate interests. The Federal Government does have an interest in protecting interState streams. So 

that is originally why the Act was passed dealing with ‘‘waters of 

the U.S.’’ that were basically navigable in fact. But the states have 

always historically had a strong interest in protecting waters in the 

State itself. So interState land use and water issues. And so in examining that and looking at the Clean Water Act, it’s appropriate 

that the State perform the function of dealing with those intraState 

waters. Especially those that would allow, in fact, interState commerce. And so, again, that cooperative federalism is out there, and 

I think it works well and has worked well for a number of years 

under the current definition of ‘‘waters of the United States’’. The 

problem here is you—you get to a point where that cooperative federalism could come into jeopardy, and I think that’s because you 

have a situation where the Federal Government is—through this 

new definition, would be inserting itself or interjecting itself into 

some of the primary responsibilities of the State. And that is reaching out into intraState waters that should be solely regulated by 

the State and not the Federal Government. 

Senator FISCHER. And when you talk about the permitting decisions that are—that are currently out there, those are state-administered programs; correct? 

Mr. LEVENE. Yes. 

Senator FISCHER. And this proposed rule—well, if we’re going to 

apply this expanded definition now to State programs, what do you 

think the impact would be on the Nebraska Department of Environmental Quality? 

Mr. LEVENE. Well, part of the problem here is, again, I probably 

mentioned a couple of themes or topics here a couple of times, but 

the State of Nebraska and its ability to implement and administer 

10 

those Federal programs under the Clean Water Act, the State of 

Nebraska must go through a process of adopting State statutes. 

And then the Department must go through a process of adopting 

rules and regulations. Now, those states and those rules and regulations need to be approved by the Environmental Protection Agency to make sure that they’re consistent with the—the Clean Water 

Act and the provisions there. And they at least need to be as stringent as—as the Federal law. One good example that I think I discussed in my testimony is that the State of Nebraska has its own 

statutory definition of ‘‘waters of the State.’’ And it is different than 

the definition placed on Federal laws of ‘‘waters of the United 

States.’’ But that definition as codified in Nebraska State statutes 

has been approved by the Environmental Protection Agency and 

has been regulated. That definition has been used and regulative 

of Clean Water Act programs. The problem here, moving forward 

then, is in how it will affect the Department. I think there’s a lot 

of uncertainty with regard to how the new definition is going to affect their administration. Will the agency have to go back and go 

through another review process with the EPA with regard to this 

new definition and our current State laws and rules and regulations? That’s somewhat of an unknown. We don’t know if we have 

to do that. We don’t know if we’d have to change the definition of 

the ‘‘waters of the State.’’ We don’t know if we’d have to basically 

amend those rules and regulations. Basically what I’m saying is, 

we’re not sure that our actions today are currently appropriate 

under the new definition or if the changes are going to have to be 

made for us to continue to administer those programs. 

Senator FISCHER. And I understand that this rule is going to expand the practice on a case-by-case jurisdictional determination. 

How is that going to really impact our State operations; do you 

have any idea? I mean, I know there’s a lot of unknowns out there, 

but how—how do you think that will impact the operations here in 

the State of Nebraska? 

Mr. LEVENE. I—I think it’s going to cause some confusion on behalf of both the Agencies and the individuals that will be regulated. 

I think what you have here is, under this new definition, you’re 

going to have basically a per se—basically an increase in the per 

se categorical determination of what is a ‘‘water of the U.S.’’ And 

so that’s going to expand geographically in the State to encompass 

waters that probably were previously not under the 25 jurisdiction 

of the Clean Water Act. But in doing so you’re also going to leave 

some isolated bodies of water out of there that there are going to 

be questions on. Basically, when you look at the proposed rule and 

definition and what these isolated waters are, these other waters, 

if you will, you do have to go through a case-by-case analysis of 

that, and it really determines or comes down to whether or not 

there’s some significant nexus to a core water. Again, the problem 

is, we’re uncertain how EPA is going to deal with that. And so because EPA hasn’t given us that additional information and/or guidance on how they’re going to handle that, the State of Nebraska’s 

unsure on how we can implement our programs using that same 

definition. 

Senator FISCHER. Have you requested guidance? 

11 

Mr. LEVENE. We have gone through—well, I know that there 

have been various meetings with EPA and the Department of Environmental Quality prior to this rule coming on, but I don’t think 

that those—those meetings were—I wouldn’t consider them consultation and collaboration, if you will, on trying to develop language for the proposed rule to basically meet needs and requirements at the State level. I don’t think there was really that give 

and take, if you will, between the State and Federal Government. 

Senator FISCHER. And you explained the State has been delegated authority over the Clean Water Act program since the 

1970’s? 

Mr. LEVENE. Yes. 

Senator FISCHER. And we have our unique ‘‘waters of the state’’ 

definition that’s been in effect for 40 years; correct? 

Mr. LEVENE. Yes. 

Senator FISCHER. And if the certainty of that definition and the 

four decades of decisionmaking by the Nebraska Department of Environmental Quality is basically turned upside down by this proposed rule, what do you think’s going to be the result? And address 

liability concerns, if you would. 

Mr. LEVENE. Again, I go back to this common theme of confusion 

and uncertainty for the agency. And, again, that goes back to, we 

are uncertain how the Environmental Protection Agency is going to 

interject itself into the State’s current administration of the Federal programs under the Clean Water Act. Again, we don’t know 

if new laws need to be passed, new rules need to be adopted. I 

think the Department of Environmental Quality, and I think most 

everyone would agree, that the—that the Department of Environmental Quality has done an outstanding job in the last 40 years 

to protect the State’s water quality. So if you look at it that way, 

we’re not sure what issues need to be fixed. But here, without 

knowing how we’re going to proceed forward, you’re basically going 

to upend that 40 years of, basically, certainty that both the Agency 

had, along with the regulating community, and what they—what 

they understood. And so basically by doing that you’re going to 

have producers out there that are now uncertain about whether or 

not an action that they might take could be or will be covered underneath the Clean Water Act, which causes concerns and also, 

again, for the agency side, for DEQ, until we get that guidance 

from EPA, we’re—we’re just uncertain. That uncertainty and that 

confusion basically, in my mind, breeds litigation, and it—it breeds 

potential liability on behalf of those producers. Because if they go 

out and take an action that is then, you know, after the fact determined to be the waters of the U.S., again, they can be exposed to 

fines and potential criminal penalties. And so when you have that 

situation of uncertainty along with the potential of fines and, you 

know, jail time, you’re going to get to a point where there’s going 

to have to be litigation on this between producers and the agencies 

that are enforcing these—these laws. 

Senator FISCHER. For the benefit of the public here, if you could 

explain the holdings in those two Supreme Court cases that both 

of us mentioned in our statements about confirming the limits of 

the Federal Government’s authority over water that Nebraska—or 

12 

that Congress has established in the Clean Water Act, if you could 

go into a little detail on those two cases, I’d appreciate it. 

Mr. LEVENE. I will. And I’ll kind of maybe put them together. 

Senator FISCHER. OK. 

Mr. LEVENE. They’re pretty substantial. But the SWANCC case, 

or the earlier case in the State of Illinois, was against the Army 

Corps of Engineers. And both SWANCC and Rapanos basically 

dealt with bodies of water. In one case a pond, and in another case 

a series of wetlands. And that these bodies of water are—were adjacent to non-navigable tributaries. So they were not directly connected to a ‘‘water of the U.S.’’ under the current definition, if you 

will. In the SWANCC case the entities that actually wanted to do 

a dredge and fill went to the Corps and asked whether or not they 

needed to have a 404 permit. The answer was no. Until it was later 

determined that some birds were flying overhead and landing on 

the pond and using it like a natural habitat. And because they 

were migratory birds, the Corps then felt that was something that 

affected interState commerce. And because it affected interState 

commerce, the Agency felt that it would be determined to be waters 

of the U.S., which would be then subject to the Clean Water Act 

jurisdiction and requirements of a 404 permit. In that case you basically had a decision that the Court said, that’s way too tenuous 

of a line to draw between an interState commerce for migratory 

birds and a body of water that does not meet a navigable stream. 

And so that was one limitation on the Federal Government in 

SWANCC. The other one, in Rapanos, there are actually two opinions that came out, the plurality opinion and an opinion by Justice 

Kennedy. Both of these were dealing with the secondary water 

issues definitions. The two opinions kind of had a different viewpoint on how they should analyze it. However, they both came to 

the conclusion that these wetlands should not be considered waters 

of the U.S. and there’s a limit on that jurisdiction by the Federal 

Government. The plurality opinion in that case basically stated 

that these secondary waters with these wetlands, that there needed 

to be some continuous surface water connection to a permanent 

water. And so you had to have a strong connection, a permanent 

connection to a navigable water. Justice Kennedy took a little different tack to it. But he basically came out and said, look, there 

at least has to be a significant nexus from the secondary water to 

an in fact navigable water. And when he was going through that— 

that ruling, or his decision in that, you know, if someone would 

look at that as a hydrologic connection, but it had to be more than 

a hydrologic connection, it had to be something that really dealt 

with the science or biological or chemical makeup of the wetland 

affecting that navigable water. 

And so both of those cases, what they did was truly limit the 

scope of the agency in the jurisdictional waters of the U.S. by saying, if there’s not a connection then it’s not going to be underneath 

the purview of the Federal Government for a 404 permit. 

Senator FISCHER. So let me ask you, in your legal opinion, do you 

think this proposal by the EPA and the Corps would adhere to or 

violate those Supreme Court decisions? 

Mr. LEVENE. Well, along the lines with some previous comments 

that the Attorney General of the State of Nebraska, along with a 

13 

couple other Attorney Generals sent for comments on this, we feel 

that the rule does violate the previous decisions of the Supreme 

Court in limiting that jurisdiction. And the reason for that really 

comes down to is, we have a situation, as I explained before, is— 

is you’re having a definition that now is going to have a per se expansion of and categorical jurisdiction over these lands and these 

waters. If it’s in a tributary area with an adjacent water, that could 

be neighboring, in a repairing area or a floodplain area, if that is 

determined to be, as a fact, a definitional term, it doesn’t matter 

what connection that body of water actually has to a navigable 

water. It simply is per se determined to be waters of the U.S. And 

so what that does is basically strip away the analysis that the Supreme Court said you had to go through, and that is, in the one 

instance, to at least have a continuous surface water connection to 

that core water, or at least have a very significant nexus to the 

core water. We’re not making that determination. We’re simply 

making a per se determination that, with a wave of our hands, it’s 

under the jurisdiction of the Federal Government. That’s going to 

be the problem moving forward and why this appears to violate the 

Supreme Court rulings. 

Senator FISCHER. And I understand one of your roles in the Justice Department is to enforce the Clean Water Act. Do you know 

what the consequences are with the penalties in violation of that 

Act? Can you explain those, please? 

Mr. LEVENE. I’ll explain the State level a little bit clearer than 

probably the Federal Government. 

But in the State of Nebraska for—for having a, basically a discharge into the stream or adding a pollutant to the stream without 

a permit, that can be either a Class IV felony or you could have 

fines up to $10,000 per day. Under the Federal—Federal penalties, 

depending on whether it’s a known violation or the like, the fines 

per day could go anywhere from $2500 up to $50,000 per day. And 

there are also various criminal sanctions that—if you’re polluting 

the streams. And so, as I kind of stated before, those are pretty big 

fines, penalties, and possibly criminal sanctions that could be imposed against an individual if they’re violating this act. 

Senator FISCHER. OK. And, in your opinion, do you think this 

proposed rule is going to, I guess, offer any additional protections 

to water quality? 

Mr. LEVENE. As I’ve stated before, I think the Department of Environmental Quality in the State of Nebraska, with its 40 years of 

history of implementing these Federal programs and the Clean 

Water Act, I think they’ve done a wonderful job. Without having 

further guidance and information from the Federal Government on 

how they’re going to interpret this new rule, it really—it’s really 

hard, if not impossible, to determine what benefits would come out 

of it. 

Senator FISCHER. OK. So let me see if I have this correct from 

everything you said. We have a proposed rule that’s going to infringe on the state’s authority to protect and manage our water resources; it will disrupt the successful operation and certainty of our 

state-run programs; it will create administrative burdens for our 

Nebraska Department of Environmental Quality; it will increase 

litigation and liability exposure for our people and businesses; it 

14 

will violate Supreme Court rulings on the limits of Federal authority under the Clean Water Act; and you don’t believe that there 

would be meaningful benefits to this in the end? Did I sum you up 

pretty well 19 here? 

Mr. LEVENE. I’d say that’s a pretty good summary, yes. 

Senator FISCHER. OK. Good. 

I thank you for your testimony before the Committee, Mr. 

Lavene, and appreciate you taking time to be with us today. Thank 

you. 

Mr. LEVENE. Thank you, Senator Fischer. 

Senator FISCHER. With that, I would ask that our second panel 

please come up. 

(Short break taken accordingly—10:35 a.m.) 

Senator FISCHER. Well, I would like to welcome the second panel 

to the table. There are several excellent witnesses representing a 

very diverse group of stakeholders, and they can speak more of the 

impacts of the proposed rule and what that will have on citizens, 

businesses, counties, and livelihoods. 

We are going to begin with Mary Ann Borgeson. She is the Chair 

of the Douglas County Board of Commissioners. Commissioner 

Borgeson is a native of Omaha and became the first female to chair 

the Douglas County Board in 1997. In addition to serving as chair, 

Commissioner Borgeson serves on the Board of Directors for both 

the Nebraska Association of Counties and the National Association 

of Counties. She is currently the president-elect for Women of the 

National Association of Counties. 

Commissioner, I am eager to hear how this proposed rule will 

impact our counties and communities. Please begin your testimony 

whenever you’re ready. 

STATEMENT OF MARY ANN BORGESON, CHAIR, DOUGLAS 

COUNTY BOARD OF COMMISSIONERS 

Ms. BORGESON. Thank you, Senator Fischer, for the opportunity 

to testify on the ‘‘Waters of the United States’’ proposed rule and 

the potential impact on county governments. 

For the record, I have submitted a narrative of my testimony 

that includes additional information. 

On a National level, the National Association of Counties, or 

NACo, has urged the Federal agencies to withdraw the proposed 

rule until further analysis of its potential impacts has been completed. Douglas County concurs with that recommendation. 

Clean water is essential to all our Nation’s counties. The availability of an adequate supply of clean water is vital to our Nation, 

and integrated and cooperative programs at all levels of government are necessary to protecting water quality. 

Douglas County is a ‘‘Phase II’’ community under the National 

Pollutant Discharge Elimination System, or NPDES, the section of 

the Clean Water Act. A major emphasis of the County’s 

Stormwater Management Plan is to improve water quality by reducing stormwater runoff volumes. This approach is lockstep with 

EPA’s push to implement ‘‘green infrastructure’’ as a key strategy 

to improve our Nation’s overall water quality. Simply put, green infrastructure can have a significant positive benefit for water quality, and with this being an EPA priority, it is essential that the 

15 

proposed ‘‘Waters of the U.S.’’ rule be supportive, and not contradictory to, the continued implementation of green infrastructure 

across the country. Put another way, if the ‘‘Waters of the U.S.’’ 

rule negatively impacts the implementation of green infrastructure, 

it will mean more taxpayer dollars being wasted on process rather 

than being directly spent on water quality improvements. 

Counties own and maintain a wide variety of infrastructure that 

is impacted by the current regulations and that would be further 

impacted by the proposed rule. 

Projects we are working on already significantly impacted by the 

current regulations are given the lack of clarity in the proposed 

rule. We anticipate additional negative impacts. One of our current 

projects is a prime example of how cumbersome and expensive the 

for bidding process is, and the costly delays are largely due to the 

inconsistencies in the application of the rules and the lack of definitions. Our 180th Street project will improve the section line roads 

from the Old Lincoln Highway to West Maple Road. Besides providing easier access to new developing areas, it will relieve the traffic—it will relieve the traffic load on Old Lincoln Highway, which 

is on the National Registry, and on the section line road. The immediate area is currently being passed over for most development 

due to a lack of access to major roads—roadways, including the Expressway to the south. The project includes two 900-foot bridges 

over railroad tracks and a flowing creek and two other bridges over 

an unnamed tributary. The initial environmental permitting process for these bridges went relatively smoothly and involved a Categorical Exclusion, the lowest level environmental involvement. 

The process began in 2002, with the construction originally scheduled for 2010. Design and permitting work began in 2005. But the 

environmental documents are still not signed. The newest projected 

construction date is now 2018 because of these delays. 

The reason for the delays is a small county road ditch which is 

several feet deep and wide and full of weeds and grasses with a rut 

at the bottom approximately eight inches wide and an inch deep. 

There is no ordinary, quote, high—quote, Ordinary High Water 

Mark, unquote, associated with this rut because when it rains it 

is completely under water. However, the Corps of Engineers has 

declared this rut a ‘‘water of the U.S.,’’ prompting a redesign of the 

project costing the County hundreds of thousands of dollars in delaying this project. 

An additional concern is storm water clean-up. We deal with disasters such as flooding and wind storms regularly, and these types 

of storms impact many ditches, culverts, and tributaries. Trying to 

get permits is already a problem in these situations. Our country 

has made tremendous strides in improving water quality since the 

inception of the Clean Water Act, but if the process is not clarified 

and streamlined, more counties will experience delays in safeguarding and caring for infrastructure and expend substantial dollars in doing so. Dollars that could instead be spent on direct improvement of water quality. 

To reiterate my prior point, I ask that the proposed rule be withdrawn until further analysis and consultation with State and local 

representatives have been completed. 

16 

Again, I thank you for the opportunity to testify on the proposed 

‘‘Waters of the U.S.’’ rule, and I do welcome the opportunity to address any questions you may have later. 

[The prepared statement of Ms. Borgeson follows:] 

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Senator FISCHER. Thank you, Commissioner. 

Next I would like to welcome Mrs. Barb Cooksley, the presidentelect of the Nebraska Cattlemen. Barb and her family raise cattle 

on their ranch near Anselmo, Nebraska where they pride themselves on being good stewards of the land and water resources. I’m 

looking forward to Barb’s testimony which will offer great insight 

on how the proposed ‘‘Waters of the U.S.’’ rule will affect this very 

special Nebraska way of life. Barb, please begin your testimony. 

STATEMENT OF BARBARA COOKSLEY, OWNER 

COOKSLEY RANCH, ANSELMO, NE 

Ms. COOKSLEY. Thank you, Senator. 

Good morning. My name is Barb Cooksley. My family raises cattle on our ranch near Anselmo, Nebraska. I am president-elect of 

Nebraska Cattlemen, and thank you for allowing me to testify 

today on the impacts of the Environmental Protection Agency and 

the Army Corps of Engineers’ proposed rule on the ‘‘waters of the 

United States.’’ I’m here today representing Nebraska Cattlemen’s 

3,000 plus members but I’m also happy to lend my voice to nearly 

50,000 ag producers in Nebraska. In addition to my service to Nebraska Cattlemen, I currently serve on several environmental 

boards and committees for the areas and State. Land stewardship 

has been my family’s priority for generations. 

First and foremost, I want to thank you for your interest in this 

issue and for continuing to be engaged, because EPA intends to finalize the WOTUS rule by sometime this year. I’m also thankful 

Congress included language in the omnibus package that led to the 

withdrawal of EPA’s Interpretive Rule. That rule was problematic 

and did not provide clarity or certainty for agriculture. 

Animal ag producers pride themselves on being good stewards of 

our country’s natural resources. We maintain open spaces, healthy 

rangelands, provide wildlife habitat while working to feed the 

world. But to provide all these important functions, we must be 

able to operate without excessive Federal burdens like the one 

we’re discussing today. As a beef producer, I can tell you after 

reading the proposed rule it has the potential to impact every aspect of our family’s operation and others like it by regulating potentially every water feature on my land. What’s worse is the ambiguity in the proposed rule that makes it difficult, if not impossible, 

to determine just how much our family ranch will be affected. This 

ambiguity places all landowners in a position of uncertainty and inequity. Because of this, I ask the EPA and Army Corp of Engineers 

to withdraw the proposed rule and sit down with farmers and 

ranchers to discuss our concerns and viable solutions before any 

additional action. 

I would like to use my time here this morning to show you why 

this rule is problematic for operations like mine and show you some 

pictures to help color the issues. 

Welcome to just outside Anselmo, Nebraska. In this picture you 

will see the home place for our ranching operation. There are several homes on this site since we operate the ranch alongside two 

additional generations of family members. Our ranch sits in the 

pristine Nebraska Sandhills. The Sandhills are a unique ecosystem 

of mixed-grass prairie that has grown on top of stabilized sand 

31 

dunes. We use cattle to manage this land to ensure this unique ecosystem is protected and maintained rather than deteriorating and 

literally blowing away. 

This is an aerial photo that’s been zoomed out slightly. What 

look like waves are actually the rolling hills of sand dunes, natural 

depressions, draws, and dry ruts that may have water in them seasonally. What you cannot see is the unique feature of the Sandhills 

which is its close connection to groundwater supplies. This close 

connection makes it possible for grass to be grown on top of the 

sand dunes. And at times ponds can literally spring up in these depressions of the Sandhills out of nowhere because of this connection. However, within a matter of months, and perhaps for several 

years, the water may be gone again. As you can see, currently 

there is no water here. But the question is, is that dried up natural 

depression a WOTUS? Are my seasonally flowing draws an ephemeral stream? There’s no water in the draw, but the proposed rule 

suggests these features could be jurisdictional. If so, will I be required to obtain a permit to conduct daily activities across my entire property, such as building a fence or moving cattle from pasture to pasture? 

Here’s a pond with water in it and one without. This water occurs naturally. Cattle and wildlife utilize this water. And producers 

want to be able to allow cattle to use this naturally occurring water 

body. If this pond is jurisdictional under the WOTUS rule, would 

cattle or wildlife waste in the water constitute a discharge that I 

would need a permit for? It may sound silly to say that but in my 

interpretation, and many others’ interpretations, it suggests just 

that. 

Here’s a photo of the same ponds where you can see they are 

near an eroded channel that runs to the Middle Loop River. At 

times, water does run off into this channel. Here’s where it gets put 

all together and see how the proposed rule expands Federal jurisdiction. In the top right corner is the Middle Loop River. This river 

is an interState water and falls under Federal jurisdiction. That’s 

uncontested. Now just to the left, the eroded channel, the beige 

squiggly line, now it’s questionable whether this channel would 

have been considered Federal water prior to the WOTUS rule. But 

now will most likely be deemed a tributary that meets the definition of a WOTUS. And under the proposed rule, every water body 

adjacent to a tributary is a WOTUS too. It appears to me they 

would be Federal waters under the proposed rule. If they are indeed ‘‘Waters of the U.S.,’’ I will need permits to conduct everyday 

account activities through those waters. Permits that will cost my 

family time and money. We will continue to do our part for the environment but this ambiguous and expansive proposed rule does 

not help us achieve that. 

We look forward to working with the Environment and Public 

Works Committee to insure we have the ability to do what we do 

best, produce the world’s safest, most nutritional, abundant and afford able protein, while giving the consumers the choice they deserve. Together we can sustain our country’s excellence and prosperity and insure the viability of our way of life for future generations. 

I appreciate the opportunity to visit with you today. Thank you. 

32 

[The prepared statement of Ms. Cooksley follows:] 

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Senator FISCHER. Thank you very much, Barb, for providing that 

perspective on the agricultural industry. 

Next we have Mr. Donald Wisnieski. He is president of the Nebraska State Home Builders Association. A native of Norfolk, Don 

is the owner of Wisnieski Construction which has served the Norfolk community since 1986, primarily focusing on custom home 

building. 

Don, you are to be commended for your community service and 

operating that successful small business for almost three decades. 

When you’re ready, please begin your testimony. 

STATEMENT OF DONALD WISNIESKI, OWNER, 

WIDNIESKI CONSTRUCTION INS. 

Mr. WISNIESKI. Thank you. 

Senator Fischer, thank you for the opportunity to testify today. 

As stated, my name is Don Wisnieski. I’m the president of 

Wisnieski Construction located in Norfolk. I also serve as the 2015 

President of the Nebraska State Home Builders Association. Home 

builders have been an advocate for the Clean Water Act since its 

inception. We have a responsibility to protect the environment. And 

it is a responsibility I know well because I must often obtain permits for building projects. When it comes to Federal regulatory requirements, what I desire as a small business owner is a permitting process that is consistent, timely, and focused on protecting 

true aquatic resources. 

Landowners have been frustrated with the continued uncertainty 

over the scope of the Clean Water Act over waters of the United 

States. There is a need for additional clarity, and the administration recently proposed a rule intended to do just that. Unfortunately, that proposed rule falls short. There is no certainty under 

this proposal, just the expansion of Federal authority. These 

changes will not even improve water quality, as the rule improperly encompasses waters that are already regulated at the State 

level. The rule would establish broader definitions of existing regulatory categories such as tributaries and regulates new areas that 

are not currently federally regulated, such as an—adjacent nonwetlands, repairing areas, floodplains, and other water areas. And 

these changes are far reaching, affecting all Clean Water Act programs but no—but provides no additional protections for most of 

these areas already comfortably resting under the State and local 

authorities. 

I’m also concerned that the terms are overly broad, giving the 

agencies broad authority to interpret them. I need to know the 

rules. I can’t play a guessing game of, is it jurisdictional. We don’t 

need a set of new vague and convoluted definitions. Under the 

Clean Water Act, Congress intended to create a partnership between Federal agencies and the State governments to protect our 

Nation’s water resources. There is a point where Federal authority 

ends and the State authority begins. And the Supreme Court has 

twice affirmed that the Clean Water Act places limits on Federal 

authority over waters. And the states do regulate the waters under 

their jurisdiction. Nebraska takes its responsibilities to protect its 

natural resources seriously. 

38 

If you look around the country, you’ll find that many of the 

states are protecting their natural resources more aggressively 

since the passage of the Clean Water Act in 1972. 

The proposed rule will have significant impacts on my business. 

Construction projects rely on efficient, timely, and consistent permitting procedures and review processes under the Clean Water 

Act programs. An onerous permitting process could delay projects 

which leads to greater risk and higher costs. Also, more Federal 

permitting actions will trigger additional statutory reviews by outside agencies under laws including the Endangered Species Acts, 

the National Historic Prevention Act, the National Environmental 

Policy Act. It’s doubtful that these agencies will have the equipment to handle these inflow of additional permitting requests. 

I am uncertain of what the environmental benefits are gained by 

this paperwork. But I am certain of the massive delays of 

permittings that will result. The cost of obtaining Clean Water Act 

permits range from close to 29,000 all the way up to close to 

$272,000. Permitting delays will only increase these costs and prevent me from expanding my business and in hiring more employees. 

The agencies have not considered the unintended consequences 

of this rule. Under this proposed rule, Low Impact Development 

stormwater controls could be federally jurisdictional. Many of our 

builders voluntarily select LID controls, such as rain gardens and 

swells for the general benefit of our communities. This rule would 

discourage these voluntary projects if they require Federal permits. 

This proposed rule does not add new protections for our Nation’s 

water resources, it just shifts the regulatory authority from the 

states to the Federal Government. The proposed rule is inconsistent with previous Supreme Court decision and expands the 

scope of waters to federally regulated beyond what Congress envisioned. Any final rule should be considered—or consistent with the 

Supreme Court’s decisions, provide understandable definitions, and 

preserve the partnership between all levels of government. All are 

sorely lacking here. 

I want to thank you for the opportunity to testify. And I do look 

forward to any questions you may have, Senator. Thank you. 

[The prepared statement of Mr. Wisnieski follows:] 

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Senator FISCHER. Thank you, Don. I would like to welcome Mr. 

John Crabtree. Mr. Crabtree is the Media Director for the Center 

of Rural Affairs which has accomplished commendable work on 

rural development opportunities throughout our State. 

I would note that, as is customary for the Senate Environment 

and Public Works Committee hearings, we work in a bipartisan 

manner to select witnesses. And with ranking member Senator 

Barbara Boxer, our next two witnesses are Minority witnesses. 

Mr. Crabtree, please begin your testimony when you are ready. 

STATEMENT OF JOHN CRABTREE, CENTER 

FOR RURAL AFFAIRS, LYONS, NE 

Mr. CRABTREE. Thank you, Senator Fischer, and good morning. 

And, yes, I thank the members of the Committee and the ranking 

members and the staff for working with me to—to invite me here. 

But I thank you for inviting me here, too. I really appreciate you 

bringing this hearing to Nebraska. 

My name, as you said, is John Crabtree. I live and work in the 

Northeast Nebraska small town of Lyons, population 851. I’m testifying today on behalf of the Center for Rural Affairs where I work 

as Media Director and rural public policy advocate. 

Since its founding in 1973, the Center’s resisted the role of advocating for the interests of any particular group. Instead, we’ve chosen to advance a set of values, values that we believe reflect the 

best of rural and small town America. And we deeply believe that 

water quality is one of those—that clean water is one of those rural 

values. 

The need for this rulemaking process arises out of the chaos, confusion and complexity surrounding Clean Water Act enforcement as 

a result of Supreme Court decisions in 2001 and 2006. The proposed rule focuses on reducing that confusion, and the Center for 

Rural Affairs is encouraged by the process so far. We encourage the 

EPA and the Army Corp of Engineers to continue moving this rulemaking process forward. 

It’s worth clarifying that the Center is supportive of the formal 

rulemaking process as it’s provided the opportunity to craft a 

stronger and more suitable rule through increased citizen input 

and engagement. While no proposed rule is perfect, we believe the 

rulemaking process will improve this rule, which is why we provided detailed and substantive comments to the EPA and Corps 

during the public commentary period. And we believe that an improved rule can and should reduce confusion and provide clarity for 

regulated entities, including ranchers and farmers, and ultimately 

improve the quality of the Nation’s waters for the hundreds of us 

who utilize and depend upon clean water from our rivers, lakes, 

and streams. 

Clean water is vital to farming and ranching and small towns. 

Water for livestock, irrigation, and other purposes is crucial to the 

day-to-day operations of farms and ranches. And farmers and 

ranchers are the tip of the spear when it comes to preserving water 

quality in America because much of the surface water of the U.S. 

falls first on American farms and ranches. 

Streams and wetlands create economic opportunity in small town 

America through hunting, fishing, birding, recreation, tourism, 

49 

farming, ranching and small manufacturing. Farmers, ranchers 

and America’s small towns depend heavily on water and our neighbors downstream count on us to preserve the quality of that water 

for their use as well. 

Now, despite the assertions that underState the economic benefit 

and vastly overState the cost of implementing this proposed rule, 

the true cost of implementation is estimated to range from 160 to 

278 million. And according to multiple econometric models, the estimated economic benefits of implementing the proposed rule range 

from 390 to 510 million, or likely double the costs. 

Clean water is crucial here in Nebraska too, of course. And vulnerable surface waters are prevalent in Nebraska. EPA estimates 

that 52 percent of Nebraska streams have no other streams flowing 

into them, and that 77 percent do not flow year-round. Under varying interpretations of the most recent Supreme Court decision, 

these smaller water bodies are among those for which the extent 

of Clean Water Act protections has been questioned. 

EPA has also determined that 525,000 people in Nebraska receive some of their drinking water from areas containing these 

smaller streams and that at least 197 facilities located on such 

streams currently have permits under the Clean Water Act and 

other Federal statutes regulating pollution discharges. In addition, 

the Nebraska Game and Parks Commission has estimated that 

nearly 829,000 acres of wetlands in the State could be considered 

so-called isolated waters particularly vulnerable to losing those 

safeguards. 

The ‘‘Waters of the U.S.’’ rule is the product—excuse me, I’m 

sorry, I lost my place there. 

Chief Justice Roberts has specifically said that rulemaking would 

most likely be required to provide necessary clarification of Clean 

Water Act jurisdiction. This has been a rigorous rulemaking process. EPA and the Army Corps has conducted extensive outreach 

to—as I said, conducted extensive outreach and received close to 

one million public comments on the proposed rule, including from 

the Center of Rural Affairs and thousands of other organizations 

and hundreds and thousands of individuals. An estimated 87 percent of those comments support the rule. 

The ‘‘Waters of the U.S.’’ rule goes to great lengths to ensure that 

farmers and ranchers benefit from preserving water quality but are 

not overly burdened with the rule’s implementation. All the historical exclusions and exemptions for farming and ranching are preserved, including those for normal farming and ranching practices. 

And that means that dramatic rhetoric such as statements that 

farmers and ranchers will need a permit to move cattle across a 

wet field or stream are absolutely false. Likewise, public statements that farm ponds would—by detractors is supported by the— 

despite public statements to the contrary, farm ponds would continue to fall under the longstanding exemption for farm ponds in 

the Clean Water Act. 

In the final analysis, streams that only flow seasonally or after 

rain have been protected by the Clean Water Act since it was enacted in 1972. As well they should be, since more than 60 percent 

of streams nationwide do not flow year-round, and yet those very 

50 

same streams contribute to the drinking water for 117 million 

Americans. 

Again, I want to thank you, Senator, for having this hearing and 

for inviting me here today. 

Just my closing statement, my last comment, here in the west, 

we do understand that there’s a lot of truth to the old joke, whiskey is for drinking and water is for fighting. Water is life, for people, crops, livestock, and wildlife as well as farms, ranches, business and industry. It’s in all our interest to protect this most vital 

of our natural resources. 

We believe the EPA and Army Corps of Engineers should continue to listen to concerns, make substantive improvements to the 

rule, and then move forward to finalization. Thank you. 

[The prepared statement of Mr. Crabtree follows:] 

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Senator FISCHER. Thank you, Mr. Crabtree. 

Next, Mr. Wesley Sheets will be a witness for the Minority as 

well. Wes is the Nebraska National Director and served on the National Executive Board of the Izaak Walton League of America. Mr. 

Sheets worked for 32 years for the Nebraska Game and Parks 

Commission, and I thank him for his service to Nebraska. 

So welcome, Wes. And your testimony, please. 

STATEMENT OF WESLEY F. SHEETS, EXECUTIVE BOARD MEMBER AND NEBRASKA NATIONAL DIRECTOR, IZAAK WALTON 

LEAGUE OF AMERICA 

Mr. SHEETS . Thank you, Senator Fischer, and members and 

staff of the Committee on Environment and Public Works. I thank 

you for the opportunity to provide comments here today. 

My name is Wes Sheets, and I do live here in Lincoln, Nebraska. 

I am testifying on behalf of the Izaak Walton League of America, 

which is one of the Nation’s oldest recreational and conservation 

organizations. The Izaak Walton League was formed back in 1922 

by a group of outdoor specialists that were concerned with the 

water pollution impacting the health of our fish and wildlife and 

other natural resources. The founders of our organization understood that clean water and healthy wetlands are essential to robust 

populations of fish, and ducks, and other wildlife and, in turn— 

aha—and, in turn, to enjoyable and successful days in the field 

pursuing them. 

I am active in all levels of the Izaak Walton League, as the treasurer of the local chapter, as the—I’m the national director for Nebraska, and I recently became a member of the League’s executive 

board. Today I’m representing our nearly 2,000 members here in 

Nebraska and our other 45,000 members across the Nation. Our 

members are all from outdoor enthusiasts who hunt, fish, and participate in recreational shooting, boating, and many other outdoor 

activities. 

My working career that Senator Fischer alluded to, I spent 32 

years with the Nebraska Game and Parks Commission as a fisheries biologist, aquatic scientist, and finally finishing the career as 

the Agency Assistant Director for fisheries, wildlife and law enforcement. I was very privileged back in the early 1970’s and mid 

1970’s to participate as an agency representative as the State of 

Nebraska began the establishment of its first water quality criteria 

standards under the newly passed Nebraska Environmental Protection Act. 

It was a treat to see Senator Smith here in the audience this 

morning, and I thank him for helping get that process started. 

I do want to start by acknowledging the interests and concerns 

of all my colleagues who are testifying here in opposition to this 

rule. The Izaak Walton League has a long history of working with 

farmers and ranchers, as well as other industries, on solutions for 

the conservation issues and we pledge to continue to do so. 

League members are members—are farmers and ranchers, or 

they are employed by other industries represented here. And many 

of us come from rural and agricultural communities. I myself grew 

up on a dairy farm down in our neighboring State to the south. 

56 

We recognize the importance of clean water, as I hope everyone 

in this room also does. Clean water is fundamentally essential to 

all life, from humans, to wildlife, to fish and plants. Congress has 

charged the Environmental Protection Agency with cleaning up 

America’s waters and with keeping it clean. To State the obvious, 

water flows downstream and can carry sediment, nutrients, and 

other pollutants with it. There is no line in the watershed above 

which water and pollutants do not flow downstream, at least to my 

knowledge. If landowners and businesses below some arbitrary line 

in the watershed of connected waters would be required to contribute to clean waters, while those above the arbitrary line could 

send sediments, nutrients and other articles downstream without 

concern for those impacts, those living upstream would certainly 

have an unfair and unnecessary economic advantage, I would submit. 

This highlights the current confusion, and that is also why so 

many groups have asked the agencies for a clarifying ruling. 

Science is irrefutable that watershed waters are considered in the 

rules that are connected. All waters are important, and that includes the ephemeral waters that do not flow all year long perhaps. 

The rule is important to Nebraskans for very many reasons, not 

the least of which is the maintenance of fisheries and wildlife habitat, flooding mitigation, water-based recreation, industrial need, 

and many more life needs. Drinking water tops the many lists. And 

John just recounted some of the statistics that I wanted to use 

about how many folks depend on our stream water supplies for 

their drinking water. 

Clean water is exactly the type of issue where a Federal 

rulemakes particular sense. The vast majority of U.S. waters are 

part of an interState network that drains to one of the oceans. 

What we put into upstream Nebraska waters affects not only Nebraskans but it does affect the hunting and fishing opportunities 

of people all the way down to Louisiana and into the Gulf of Mexico. 

The muddying and pollution of waters directly hurts hunting and 

fishing and all of the businesses that benefit from them. Approximately 47 million hunters and anglers in Nebraska generate over 

$200 billion in economic activity each year. The rule needs to seek 

to clarify which waters are covered in this endeavor, and making 

the process more efficient and effective, and it is a better way to 

address the concerns about how the Clean Water Act is applied. 

Nebraskans care as much about clean water and their downstream neighbors as anyone else in the country, and we care just 

as much about our traditions of fishing and hunting and depend on 

clean water. 

Please give the agencies a chance to present a final rule. 

And I thank you for the opportunity, Senator, for being present 

here today. 

[The prepared statement of Mr. Sheets follows:] 

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Senator FISCHER. Thank you, Wes. Good to see you. Finally, I’m 

pleased to welcome our last witness, Mr. Don Blankenau. Mr. 

Blankenau is a water and natural resources attorney whose impressive career has enabled him to become a nationally recognized 

water policy expert. 

Before we hear from Mr. Blankenau, I would tell you that I’m entering into today’s hearing record comments he filed on behalf of 

the Nebraska Association of Resource Districts, Nebraska League 

of Municipalities, and the Nebraska Groundwater Management Coalition. 

Mr. Blankenau, thank you for testifying. You may begin when 

ready. 

STATEMENT OF DON BLANKENAU, ATTORNEY FOR NEBRASKA 

ASSOCIATION OF RESOURCES DISTRICTS AND THE LEAGUE 

OF NEBRASKA MUNICIPALITIES 

Mr. BLANKENAU. Thank you, Senator. 

Members of the Committee and staff, we appreciate the opportunity to testify this morning. 

Again, my name is Don Blankenau, and I am an attorney based 

in Lincoln, Nebraska specializing in water and natural resources 

law. My practice has allowed me to engage in water cases in the 

states of Nebraska, Arizona, North Dakota, South Dakota, Missouri, Georgia, Florida and Alabama. I appear here today to offer 

my thoughts regarding the proposed rule. My colleague, Vanessa 

Silke, and I have previously filed formal comments on behalf of this 

rule regarding compliance to include the Nebraska Groundwater 

Management Coalition, the Nebraska Association of Resources Districts, the League of Nebraska Municipalities, and the Tri-Basin 

Natural Resources District and the Lyman-Richey Corporation with 

the sand and gravel mining operation. As you’ve noted, Senator, 

those comments are included in the record today, but I’ll offer some 

additional comments. 

I’d like to begin with a brief anecdote that I think highlights the 

philosophical perspective of the Federal proponents of this rule. 

Some 4 years ago I was at a meeting with the—with an employee 

of the Army Corps of Engineers when we began a discussion concerning groundwater management. To my surprise, this employee 

stated that it was time for the Federal Government to assert more 

control over groundwater. I responded to that statement with the 

observation that the U.S. Supreme Court in a Nebraska case, 

Sporhase versus Nebraska, ex rel. Douglas, in 1982, had determined that groundwater was an article of interState commerce 

within the meaning of the Constitution. And I went on to explain 

that as an article of interState commerce, any increased Federal 

control was the sole purview of Congress and could not be undertaken by an agency absent expressed congressional authorization. 

The Corps employee simply responded, we can do a lot with our 

rules, and if Congress won’t act, we will. The proposed rule I think 

is the product of that kind of thinking. 

Whether a rule is good policy is one question. Whether it’s legal 

is another. And in my view, this proposed rule is neither. Article 

1, Section 8, Clause 3 of the Constitution of the United States contains the ‘‘commerce clause’’ that authorizes Congress alone to 

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make laws governing interState commerce. Historically, it was the 

interState trafficking of goods and services on the Nation’s interState waters that served as the legal lynchpin to congressional control over those waters. In other words, Congress only had the authority over navigable waters to the extent those waters served as 

conduits of commerce. It is in this context and under this authority 

that Congress adopted the Clean Water Act and expressly limited 

its reach to navigable waters. In the decades that have passed 

since its passage, the reach of the EPA and the Corps has broadened as those two agencies extended the definition of the term 

‘‘navigable waters.’’ Contrary to the assertions of its proponents, 

the proposed rule does not merely codify existing judicial interpretations of navigable waters, it affirmatively extends and expands 

the meaning to create Federal controls that go far beyond what 

Congress intended when it adopted the Clean Water Act. 

The proposed rule defines water as navigable if it has a hydrologic groundwater connection to a navigable stream. So while molecules of water in an excavation or pothole may be miles from a 

stream or decades from ever impacting that stream, the proposed 

rule defines them as navigable in place today. In Nebraska, the 

groundwater is commonly hydrologically connected to stream flow 

and can extend out many miles from the stream. The proposed rule 

would therefore impact many thousands of people more than the 

existing rule. 

Existing permit requirements under the Clean Water Act already 

add a layer of Federal regulatory oversight on top of the statebased regulatory scheme, and result in significant cost increases 

and overall delay in the development process. For example, due to 

limited staff support at the Corps’ Omaha District Office, individual permits under Section 404 currently take up to 18 months 

to process. Permit costs typically range between $25,000 and 

$100,000, accounting for legal, technical and logistical costs. Engaging the Corps in the permit application process is no guarantee 

that a permit will be granted. In those instances where a permit 

is denied, development of a property at its highest and best use is 

effectively precluded. These costs, along with the uncertainty of the 

permit approval process, will only increase under the proposed 

rule’s expansion of the scope of Federal jurisdiction and will directly impinge upon land-use decisions at the State and local level. 

Ultimately, the proposed rule stretches the definition of navigable waters beyond credibility. Which is evidenced by the nearly 

1,000,000 negative comments that have been submitted. The truth 

is, and this is important, there is no water quality necessity that 

requires this kind of Federal intervention. None at this time. There 

simply is no real problem this rule will solve. Instead, the rule is 

just another example of the ever-growing Federal erosion of State 

authority and ever-expanding regulatory net. 

I urge the Committee to take all necessary action to ensure the 

proposed rule does not become law. Thank you. 

[The prepared statement of Mr. Blankenau follows:] 

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Senator FISCHER. Thank you, 

Mr. BLANKENAU. At the request of the Minority, I am entering the comments from 

the Sierra Club Nebraska Chapter into our hearing record. And at 

the request of my partner in the U.S. Senate, I am entering into 

the record a statement from Senator Ben Sasse. 

I would like to thank all of the panel for your thoughtful testimony. It’s clear that you and the groups that you represent all 

have a very strong appreciation for the importance of clean water, 

and strong, healthy communities here in State of Nebraska. 

There are clearly some major issues with the proposed rule that 

would impact every corner of our State, and so I’d like to open up 

the first question to the entire panel. 

In your view, how do we as Nebraskans best take care of our precious water resources and how will this proposed rule impact these 

important efforts? Is it a top down bureaucratic Federal scheme? 

Is that—is that a help or is that a hindrance? And we’ll start with 

Commissioner, please. 

Ms. BORGESON. Thank you, Senator. 

We protect our water resources by using the best construction 

practices and as—as we develop our communities. And we use real 

water professional—resource professionals to help us do that. The 

EPA and the Corps of Engineers have done a great deal of good to 

improve the water quality. In general, having an organization that 

can coordinate the clean-up of our waters and work together to establish this goal would seem to be a reasonable solution. But in 

speaking with our engineer staff, they believe that the original concept, when properly implemented, can—can be of help. But, unfortunately, they believe that because of the inconsistencies in enforcement, and the lack of clear definition of what is expected, has 

become quite a hindrance. The problem that’s developed is that 

many of the individuals within the program seem to have forgotten 

that this is a combined effort of all those involved to improve and 

protect one of our most valuable resources. And so there has to be 

consistency in the way the rule is administered, and that it has to 

start with the clear and accurate definitions that are interpreted 

by the regulators in a consistent manner. 

A top down bureaucratic Federal scheme would work best if the 

rule—or regulation is written in a way to incentivize communities 

rather than punish them. And then we—you know, if we’re spending all of our resources on process, we’re spending less on—and directly, on things that would impact and improving the water quality. 

Senator FISCHER. Thank you. 

Ms. Cooksley, your thoughts, please? 

Ms. COOKSLEY. Thank you. I’d like to answer that last question 

first, would it be a help or a hindrance. In my view, it would a hindrance to have a Federal top down. And the reason being, as a private landowner, I am on the land every day. I depend on that land 

to be managed properly to sustain the—the grass on the sand 

dunes which provides wildlife habitat and food for the cattle. Our 

family has been on that ranch for over a hundred years. Having 

local management makes more sense. We see impacts more immediately and we can address those. And we would like to see going 

113 

forward that we develop relationships with our agencies and that 

they provide incentives, not regulations, and that they provide information, not burdens. And so I would like to keep local management. 

Senator FISCHER. Thank you. 

Mr. Wisnieski. 

Mr. WISNIESKI. There’s essentially a system in place at this point 

with the Clean Water Act and, as developers and builders, we’re 

mostly voluntarily working on the State and local levels with what 

that system is in place. So time and money is not always of the essence on projects and stuff like that. To raise costs and have more 

regulations upon us is just such detriment. Twenty percent of a 

new home to date is literally regulatory costs. So we can’t allow 

that to be increased with more regulations. So it’s simply, leave the 

system in place as is. 

Senator FISCHER. Thank you. 

Mr. CRABTREE. Mr. CRABTREE. Well, thank you, Senator. 

I guess the first part of your question is—I’ll take that first. Just 

about everybody up here has mentioned the concern about the uncertainty about jurisdiction in Clean Water Act under the rule but, 

of course, there’s much uncertainty that exists in Clean Water Act 

enforcement today that was created by the Supreme Court decisions that sort of put the system in find kind of a—in a bit of flux. 

That uncertainty really does detract from our ability to effectively 

enforce the Act and protect the ‘‘Waters of the U.S.’’ So, you know, 

my testimony I mentioned, just to reiterate, the Supreme Court, including Chief Justice, have said we’re probably going to need rulemaking to clear up these jurisdictional definitions. I, and I must 

say, continuing to have dialogs like this on what’s vitally important 

because I don’t believe that any one person or any one agency is 

going to absolutely get this right. We don’t believe the rule is perfect in its drafting. We had critical comments and supportive comments. But we are in a situation of great uncertainty today in enforcing the Clean Water Act. And so rulemaking that clears up 

those jurisdictional questions is necessary. It’s not simply a matter 

of the status quo, because that was—the status quo that existed for 

20 or 30 years has largely been absent for the last ten because of 

those Supreme Court decisions. And as far as, you know, how do 

we best do this, I think we draw on the things that we do best. 

We talk to each other, even when we disagree. The Center for 

Rural Affairs has had a long history of working with farmers and 

ranchers and conservation programs, Federal and State conservation programs, to help people—to help provide incentives for people 

to do things that improve water quality without a regulatory process. But, again, through conservation and stewardship. That’s what 

we do I think best, and that’s why the rule, I think, is supportable 

in that it creates all the—it reenforces all the exemptions that exist 

for farming in the Act previously. 

Senator FISCHER. Thank you. 

Mr. SHEETS. 

Mr. SHEETS. Thank you, Senator. Obviously, the folks that I represent are basically users of water, and water quality is very important. We’ve all talked about the confusion of the existing situaVerDate Aug 31 2005 13:28 Aug 13, 2015 Jkt 000000 PO 00000 Frm 00117 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94983.TXT VERN
114 

tion and I think that’s the nemesis of what we face. The best solution to me is not to border on a top down or a bottom up answer 

to this dilemma. I think it really borders on working together in 

a compromise to find an immediate solution where probably everybody is a bit upset but we all win in the final analysis. So, you 

know, I think organizations need the opportunity to voice their 

opinions. I think the regulators need to develop pertinent and intelligent responses to those comments, and in final analysis maybe 

will come to a better understanding of what it is we want to accomplish and how we’re going to get there. The process needs to continue on and—no question in my mind. 

Senator FISCHER. Thank you. 

And Mr. Blankenau. 

Mr. BLANKENAU. Thank you, Senator. 

You know, frankly, my testimony in opposition to this rule here 

today is against my personal interests because as a lawyer I can 

guarantee you I will make money if this rule passes. 

I think it’s always bad policy if a State or Federal agency by rule 

usurps the role of the legislature. That’s what’s occurring here. The 

legislature specified that the waters that are to be impacted are 

those that are, in fact, navigable. The geographic extent that this 

rule will reach out is so significant that only the legislature should 

step in and deal with that kind of expansion. So I do think it is 

bad policy in this instance, and I do think it’s illegal, and clearly 

against the Constitution. 

And I would go back to some previous statements. I’m sure everyone in this rooms believes that it’s important that we maintain 

clean water. That’s not really what’s at issue with this rule. There 

are no present water quality concerns that this rule will address. 

This is rather about control of the individuals and development. 

And I would urge the Committee to do what they can to quell this 

rule. 

Senator FISCHER. Thank you, 

Mr. BLANKENAU. 

Commissioner Borgeson, I have a few questions for you, please. 

In your testimony you spoke about the efforts in Omaha to address the combined sewer overflows to improve the water quality 

of the Missouri River. And that is going to be a very expensive undertaking. I think it’s estimated to cost the citizens approximately 

$2 billion. Omaha is going to—increasing their rates. I’ve heard 

about that, as I’m sure you have as well. And that’s a, really a burden on families and especially some of the poorest communities 

within the city of Omaha. I understand that green solutions are 

being proposed as part of that solution to the challenge, but this 

proposed rule that we’re talking about right now, it’s really a potential threat, I think, to the government’s ability to maintain 

those facilities in the future without having to go through this permitting program that we’re talking about. Do you agree with that? 

Can you kind of speak to that problem that Omaha may be facing 

when it looks at green solutions to such a costly problem that 

they’re facing and their citizens are being—are having to pay for? 

Ms. BORGESON. Yes. The one project in Douglas County, Omaha 

is the example of one of our combined elementary schools. The 

name is Saddlebrook, and it’s an elementary school, it’s a library, 

115 

and it’s a community center, and it has a green roof. And it catches 

all of the rain and it keeps it from getting diverted onto the parking lots and then into the storm sewers. And then it adds a great 

deal of insulation to the building as well. Pretty—pretty neat 

project. But no one knows for certain what the possible consequences are of the new rules and how that—they will affect 

projects such as these. The Board could claim jurisdiction over 

these green solutions. So the concern of the new regulations is if 

these special permits are required for some of these things, what 

will it cost, what will the length be between the time that, you 

know, were intended to do the construction and actually getting the 

permit, and what other controls on the surrounding project will the 

permit want to exert. So, you know, again, it’s essential that the 

proposed WOTUS rule does not negatively impact the use of green 

infrastructure, both from the installation and the ongoing maintenance on a standpoint of the project. 

Senator FISCHER. You know, I hear from citizens, I hear from 

business people, I hear from government, local government, State 

government, about frustrations with regulations that the Federal 

Government mandates and is passed down and that we all then 

have to deal with. But I can tell you, the example you gave about 

180th Street in your testimony, that has to be at the top of my list 

on really frustration that’s out there and the time involved and the 

cost that’s involved. How exactly do you think this proposed rule 

is going to further exacerbate that problem? 

Ms. BORGESON. Well, first of all, the—I want to compliment you 

on the Build Nebraska Act, the LB 84, because it’s been an absolute tremendous help to both the State and the local and funding 

projects to improve the transportation needs. And we are very, very 

appreciative of that. 

But the major problem is the rules are not applied consistently. 

Primarily the lack of insufficient definition, use of terminology and, 

of course, you run into different personalities. The term that— 

terms that are already a problem are still not clearly defined in the 

new rules. Plus, the new terms are being added that obviously extend the control of EPA and the Corps of Engineers over both government right-of-way but farther and farther into private land. And 

so the 80th Street—180th Street project is a great example, you 

know, of both ends of the cooperation spectrum. The—our engineer’s office met informally with the Corps of Engineers, the primary enforcers of the Clean Water Act, to discuss the project. And 

at that meaning the Corps would not give any formal opinion but 

did take suggestions about the bridge design and the location of the 

two major bridges that would be acceptable so that we could avoid 

some problems with an active stream. Well, these suggestions were 

incorporated into our original design, but as the design work continued we suddenly started to have problems with that rut at the 

bottom of the ditch that, again, was eight inches long and an inch 

deep. And so the latest construction date that we have is 2018, or 

Fiscal Year 2019, and the original start date, again, was 2010, and 

it was at a cost of about $20 million. So just to put it in perspective, assuming that a 3-percent increase in construction costs per 

year, and a 30 percent cost increase due to required changes, that 

have nothing to do with the primary ‘‘Waters of the U.S.,’’ or the 

116 

historical highway that’s—that it’s going over, the project and the 

time value money on the increased cost is now estimated to be a 

minimum of $36 million. And that’s—and a large of it is paid for 

by—a large percentage is paid for by the Federal highway. But it’s 

all taxpayer money. And so, of course, you know, we’re—we’re affected by it, so . . . 

Senator FISCHER. You know, when you talk about the regulations 

that counties are under, cities are under, you spoke in your testimony about once that a project is deemed to be under Federal jurisdiction then other Federal requirements kick in as well with 

NEPA, the National Environmental Policy Act, with, of course, endangered species, has an affect on that as well. I would assume 

then that adds additional time, additional cost to taxpayers, is 

that—is that correct? 

Ms. BORGESON. Yes, it does. I mean, it means, again, a lot more 

time and a lot more additional paperwork and expense. And a good 

example, again, is the 180th Street project because that—— 

Senator FISCHER. That’s like the poster child. 

Ms. BORGESON. Yes. Because the state—well, the State Historical 

Society insisted that our initial plan for the two 900-foot bridges 

that span the Old Lincoln Highway—and, again, that’s a piece of 

the national historic highway, and we’re very proud of that, but 

that—and we have spent hundreds and thousands of dollars to 

maintain that because of its historical value, but—and the West 

Papio Creek and the railroad tracks, they insisted that those be 

changed to include a historical consistent design to go along the 

Old Lincoln Highway. So, in simple terms, for a county this means 

additional time, additional expense, is added to each one of these 

projects and—and more so just even in—a big concern is even in 

our routine maintenance that may fall under these Federal jurisdictions just because the water may drain through county ditches 

into waterways. So we’re very, very concerned about that. 

Senator FISCHER. As I think all counties are. I don’t remember 

my exact numbers on this, but we look at the State highway system and the thousands of miles of road, well, here in Nebraska we 

have about ten times, I think, the county roads that have to be 

maintained as well. So I can appreciate the cost to citizens in this 

State to maintain the production and the problems they’re going to 

be facing now in the future. 

Ms. BORGESON. Absolutely. 

Senator FISCHER. And so thank you very much. 

Ms. Cooksley, I wanted to ask you a question, and if you could 

kind of clear something up. You know, a lot of times what we hear 

the most about this proposed rule and the idea that EPA and the 

Corps now would be regulating ditches under that proposed rule. 

And some agencies are saying, well, that’s not true, ditches are 

going to be exempted. But I continue to hear, really, uncertainty 

and some certainty that those ditches are going to be included 

under the rule. Can you address that for us? 

Ms. COOKSLEY. I will try. 

The rule does say that ditches are exempt. But it’s very vague 

to us that read it. It excludes ditches that are excavated wholly on 

uplands, drain only uplands, and have less than perennial flow. 

When I go up on an upland, to me that’s higher than lower ground. 

117 

That ditch also had to occur through water, a perennial flow. The 

term ‘‘upland’’ was not defined further, so we’re still in a fog on 

what does that mean. It does not exempt ditches that do not contribute flow either directly or through another water to navigable 

waters or tributaries. And to qualify for an exclusion a ditch must 

contribute zero flow to navigable water tributaries. And since most 

ditches that I know of convey water somewhere indirectly or directly to minor tributaries, it has no benefit. It muddies the water, 

so to speak, to us trying to understand and work within this rule. 

Senator FISCHER. What about floodplains and regulation of 

floodplains, do you have thoughts on how this proposed rule would 

affect that? 

Ms. COOKSLEY. The proposal would make everything within the 

floodplain and a repairing area a Federal water by considering that 

adjacent waters. And it fails to define how far a repairing area 

goes, which is the area around the water body. It doesn’t distinguish flood intervals. And perhaps the most concerning to me is the 

rule says, best professional judgment by regulators to be used on 

a case-by-case basis. That allows me no flexibility to plan. How can 

I get ready for this? How do I manage this? So, again, we’re back 

to the uncertainty. 

Senator FISCHER. And I know that you and your family have a 

wonderful history of conservation and in taking care of your land 

and using those best management practices. How do you think— 

how do you think you’re going to be affected when you try to follow 

the state-approved best management practices that truly affect the 

environment that you live in if this rule takes effect as it’s proposing? 

Ms. COOKSLEY. If it takes away the certainty from the State in 

managing the waters, and I have used their guidelines, then that 

puts me, as a private landowner, as a land manager, at risk. Such 

as Mr. Blankenau had said, if their—if the State authority is taken 

away, then, again, I am uncertain as to what I can and cannot do. 

And I am out there trying to do the right thing every day. 

Senator FISCHER. You know, you keep mentioning uncertainty. 

And I guess I would ask you, how do you define that? What do you 

mean by uncertainty with this rule, and what kind of impact does 

this uncertainty that you talk about, what impact does that have 

on your planning and on your management? I guess I want to dive 

down a little deeper there into what you’re saying. 

Ms. COOKSLEY. In ranching, a short-term goal may be 5 years. 

A long-term goal may be the next generation. So we’re looking a 

long ways down. We do need certainty. We need to know, is this 

depression, pond, a wetland that appears, disappears? Is that going 

to be regulated by the Federal Government; will it not be? Will it 

be regulated by the state; will it not be? I have to be able to plan 

management of that native Sandhills grass for the long term, 

which is into the next generation. So we need clear definitions and 

clear guidelines. And it gets back to certainty. 

Senator FISCHER. Thank you. Don, I’ve got a couple questions for 

you as a home builder. You know, that’s an American dream for 

people to be able to own their own home. I’ve—I truly was shocked 

to hear when you said that 25 percent of the cost of a home is beVerDate Aug 31 2005 13:28 Aug 13, 2015 Jkt 000000 PO 00000 Frm 00121 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94983.TXT VERN
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cause of regulation. That just delays, I think, the American dream 

for our citizens. 

When you look at those permitting delays, how does that affect 

you as a builder? 

Mr. WISNIESKI. Well, as the saying goes, time is money. Things 

have to move along pretty good. You know, if you go—if you’re 

working with a bank for loans, those are typically going to start 

happening within a 6-month period. If you have a Clean Water Act 

wetland permit or something like that is proposed it’s supposed to 

be in a timely manner. So you—we rely on that to be on a timely 

manner. And too many times this takes months or even years for 

that to be processed and get done. There was a 2002 study that 

was cited by the EPA in its economic analysis that the proposed 

rule found that an individual Clean Water Act wetland permit 

takes an average, now this is an average, of 788 days. That years. 

That’s a long time. And a so-called stream wide, nationwide permit 

can take an average 313 days. Very close to a year. And without 

proper—as a developer or builder, without the proper permits in 

place, or not knowing if you have those all—those permits all in 

place, it’s a great risk of running of fines, that we’re aware of, up 

to $37,500 in a day, so . . . And keeping in mind, the bank’s continually knocking. So that has to—that has to keep going. 

The big fear is, in a lot of communities across the State, with 

shortage of housing, shortage of builders, work force, developers, 

the big fear is too many of those individuals are going to throw 

their hands up in the air and say, I don’t need to deal with it. It 

compounds the problem that we’re already facing. We can’t go that 

direction. It needs to be streamlined. It needs to be timely. It needs 

to be consistent. So hopefully that answers that. 

Senator FISCHER. It did. 

And home builders, I know that sometimes you have to obtain 

those permits, Section 402 and 404, for you to complete your 

projects. What exactly are those and what do you have to follow in 

order to have those permits included? 

Mr. WISNIESKI. The matrix behind each one of those is very difficult in its own way. In essence, the 402 is basically storm water 

related; the 404 is going to be your wetland related. Keep in mind, 

I’m a small businessman, I like to grab a hammer and build a 

house. I have to rely on the lawyers in the community to help with 

these type of issues. 

Mr. BLANKENAU. God bless you. 

Senator FISCHER. Too—— 

Mr. WISNIESKI. It’s a money-making issue. But some of those 

things that are, you know, involved with these are the pre-application consultant—consultation consulting with these folks. There’s 

individual permit applications that have to be submitted; there’s 

public notifications; there’s 15, 30-day public notice comments, and 

so on and so forth, that have to be done; opportunity for public 

hearings; there’s Corps reviews; the public comments and evaluations for the permit applications; and finally the Corps’ decision to 

make the permit, or issue it or deny it. So there’s—the answer to 

that is actually pretty long if we want to get into it. I would rather 

get you information on that. 

Senator FISCHER. OK. 

119 

Mr. WISNIESKI. And provide that at a later date because we could 

go on literally for an hour on this. So if I could be allowed. 

Senator FISCHER. OK. 

Mr. WISNIESKI. I have a lot of information that I’d love to get to 

you. 

Senator FISCHER. Thank you. I look forward to receiving that. 

Can you tell me, in your testimony you were talking about any 

waters or wetlands within a floodplain, that they could be subject 

to the Clean Water Act, their jurisdiction there. How does that affect home builders? I’ve—I heard from people all across the State, 

mostly in the eastern part of the State though, that have really 

deep concerns about being in a floodplain and what’s all involved 

in that. Can you give us a little information on that, please? 

Mr. WISNIESKI. Yes. Floodplain is vaguely defined and will result 

in unpredictable and inconsistent applications as far as the Act. 

Do I need to get closer? Just holler at me next time. 

A landowner’s not able to look at a map and objectively know exactly the extent of those floodplains. That’s probably the biggest 

problem. If you look at his property, at his or her property, and 

it’s—you’ve got to decide whether you want to even purchase that 

property because you don’t know how far those extensions actually 

reach out. It’s just difficult to know where those boundaries are. 

And it makes it difficult. Is that my responsibility; is it the homeowner’s responsibility; the developer’s responsibility? So on and so 

forth. Or we have to wait for a field inspector to come out in the— 

and walk the property and subjectively determine this is where it’s 

going to or not going to go. So it’s a big issue that way. 

Senator FISCHER. OK. And we heard the Commissioner talk 

about green projects and, you know, that’s—that’s so important 

that we—that we look at what’s available and how we can move 

to more green projects. And I know there’s some—there’s some 

states and localities that require or encourage home builders to 

start building more of the low-impact development, these green 

projects that are out there. You heard the Commissioner’s answer 

on some of the issues that counties, cities, deal with. What about 

home builders and, you know, people who want to move in that direction and then when they’re building a home and what—what 

are you faced with on that? 

Mr. WISNIESKI. Well, as I said earlier—— 

Senator FISCHER. Or what do you think you’re going to be faced 

with? 

Mr. WISNIESKI. Well, it’s more of a fear than anything. As I stated in the testimony, a lot of the developers or builders are voluntarily doing those type of deals, whether we put swales in, whether 

we put water gardens, or whatever you want to call them, in. But 

if a rain garden develops wetland plants or vegetation and soils 

and happens to fall within a floodplain or a nearby river or stream, 

and a landowner, he wants to do something with it, if he has to 

dredge those out or maintain them—now, typically that’s the backyards of a lot people—you know, a lot of folks’ homes—not knowing 

what he can or can’t do to that, and if you start to remove soils 

from there to maintain that, or pesticides for any kind of controls 

for whatever that might be, there’s going to be a lot of fines or uncertainty what you can and can’t do to those areas. We’ll stop putVerDate Aug 31 2005 13:28 Aug 13, 2015 Jkt 000000 PO 00000 Frm 00123 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\94983.TXT VERN
120 

ting them in, and that’s not what we want to do. We do want to 

control that. They serve a great purpose. And on a voluntary basis, 

or on a local level that or we work with State or local levels to do 

that, that’s a great option and we want to keep doing those. We 

don’t want to eliminate folks from doing those because they’re 

going to have a hard time maintaining them. Or the length of time 

to get a permit to do that, now they’re over-silted or whatever the 

case might be. So it’s an issue. 

Senator FISCHER. Right. Thank you. Thank you very much. 

Mr. Crabtree, you stated that 80—I think I heard you correctly, 

that 87 percent of the total comments support the proposed rule. 

However, it’s my understanding that the bulk of these comments 

were not substantive and they did not evaluate the content of the 

rule. In fact, as Secretary Darcy stated publicly, out of the comments that the agencies classify as substantive, 58 percent of those 

oppose the rule. Were you aware of Secretary Darcy’s statements? 

Mr. CRABTREE. Yes, Senator. Actually, I think I had that in the 

written testimony that I submitted to the Committee. And I apologize for not emphasizing it. 

Yes, I think you’re right, I think that that’s probably the case. 

And, I mean, I think we should also be careful because, for example, the substantive comments that the Center for Rural Affairs 

provided, which I was involved in drafting, had multiple criticisms. 

But they were detailed and specific. And the overarching, you 

know, I don’t know, tenor of it was that we—we think that we’re 

moving in the right direction. That they should continue. Now, I 

don’t know how we would count that. I don’t know if we’re in 58 

percent or the 42 percent. So I would assume that we’re, you know, 

what they thought was appropriate. But, honestly, I can’t tell you. 

So that—I’m not—I’m not dis—I don’t find that matter too disconcerting but it is worthy of wondering about. But I still believe, 

even though that—because the difference between a substantive 

comment, a comment which they call substantive, which, you know, 

actually comments on a specific element of the rule, versus a statement by an individual citizen who says something that’s not specifically detailed but says, I support this rule, I mean, I think 

there’s still value in that too. So I think that 87 percent number 

is still pretty remarkable. Involves a lot of people in this country, 

said, we think doing this to protect water quality is important. 

Senator FISCHER. I think it’s also important that we base public 

policy that will affect the citizens of our State and the citizens of 

this country on fact and based on science. I always appreciate comments from constituents, but policy has to be based on fact. 

So I am going to put Secretary Darcy, her letter that she sent 

to the House with those numbers in it into today’s hearing record. 

So thank you. 

Mr. Blankenau, in your comments you State that Section 404 

permits can take up to 18 months to process by the Corps’ Omaha 

District Office and the costs can range from 25,000 to a hundred 

thousand dollars. You know, this is a serious delay, and it’s expensive. So we kind of brought it up earlier about what kind of activities are required under that permit. I’d like to know, too, what’s 

going to be required under the proposed rule that you think. And 

that wait time then, is it going to be more than 18 months? You 

121 

know, I—we always hear the horror stories about the permitting 

process and how long it takes. So what, I guess, what do you see 

for the future here? 

Mr. BLANKENAU. Well, if the proposed rule does become law, I 

think it extends the geographic regulatory reach of those agencies. 

And, as a result, I think it will require more and more permits to 

be issued. If the Corps’ office is already stretched by personnel, and 

I think they are, I think many of them are hard-working, diligent 

Federal employees, but if they’re already stretched, if their workload increases, I don’t see how it can do anything but increase 

these delays and the costs. 

Senator FISCHER. The Regulatory Flexibility Act, it requires 

agencies to examine the impacts of the proposed regulation on 

small governmental entities and on small businesses. The EPA and 

the Corps have certified that this proposed rule will not have significant economic impacts on a substantial number of small entities. But the chief counsel for the Small Business Administration 

Office of Advocacy, and that is a unit of the Federal Government, 

determined that this certification was in error and that it was improper. Can you talk about the EPA and the Corps’ actions that I 

believe undermine the safeguards we have for our Nebraska municipalities and for the protection of our citizens? 

Mr. BLANKENAU. Yes. I think their certification was the product 

of the narrative that it doesn’t change existing law. And I think the 

Small Business Administration recognized that it, in fact, does 

change existing law. And further extends that geographic reach. 

Now, all but two of Nebraska’s 530 municipalities and all of its 

Natural Resources Districts would qualify as small entities. Those 

municipalities and NRDs are among the most frequently recipients 

of 404 permits because of how much earth they move and all the 

activities that are involved. I think what you’ll see is direct impacts 

to taxpayers as a result of those activities being delayed and additional processing costs. 

Senator FISCHER. And I would like you to speak to the proposed 

rule’s justification to regulate all the water that has a hydraulic 

connection. I think you have a very unique perspective because of 

your profession, because of your positions that you’ve held in a previous life, so I think you have a really good perspective to share 

with us how the water here in Nebraska, and specifically that connection that we have, how is that going to be affected? 

Mr. BLANKENAU. Well, it’s interesting because both the Corps 

and the EPA have previously disavowed any control over groundwater. But what they’ve done by adding the hydrologic connection 

component, is effectively used groundwater to claim jurisdiction 

over discreet bodies of water that might be many miles away. So, 

for instance, you know, I’ll use the area that you were from, Senator, as an example. You might have a golf course developer who 

wishes to create a water feature and excavates a pond which exposes groundwater that might be hydrologically connected to the 

Dismal River some five miles away by that act of exposing and creating that exposure to groundwater, there’s that hydrologic connection which makes that newly excavated pond now jurisdictional. So 

while it’s technically correct that the proposed rule doesn’t regulate 

122 

groundwater, they use that hydrologic connection of groundwater 

as the lynchpin to jurisdiction. 

Senator FISCHER. And the Clean Water Act’s purpose is to protect the quality of our navigable water; is that correct? 

Mr. BLANKENAU. That’s correct. 

Senator FISCHER. And do you see this proposed rulemaking as 

expanding agencies’ jurisdiction then, do you think? You alluded to 

it, but I know attorneys don’t ever come right out and say it, but 

. . . 

Mr. BLANKENAU. I don’t want to beat around the bush of it. 

Senator FISCHER. But, you know, the—I’m very concerned about 

the regulatory authority that we may see coming because of this 

proposed rule. 

Mr. BLANKENAU. Well, again, and I really am concerned about 

what this does to the fabric of the Constitution. The authority of 

Congress is actually limited in what it can regulate. And it has historically been limited to actual navigation on waters. That was the 

whole purpose of the commerce clause being inserted in the Constitution to begin with. What we’ve done here is allowed an agency 

to define what ‘‘navigable’’ is and extend it to molecules of water 

that are very distant in time and in place. And I think that 

stretches the credibility beyond the breaking point. 

Senator FISCHER. You know, this time of year we see the 

Sandhill crane coming to Nebraska and we have the opportunity as 

Nebraskans to really enjoy that phenomenon that’s out there. But 

we also have a number of people from around the United States, 

around the world, that come to view the cranes this time of year. 

Can you explain how this rule, I think, is attempting to use these 

birds—— 

Mr. BLANKENAU. Yes. 

Senator FISCHER. —to expand that Federal control over isolated 

water? 

Mr. BLANKENAU. You’ve put your finger on one of the really odd 

things about the proposed rule, and it’s the resurrection, if you will, 

of the Migratory Bird Rule, which I thought the Supreme Court 

had placed a stake through the heart of in its SWANCC decision. 

This rule effectively resurrects that concept where if a migratory 

bird, such as the Sandhill crane, stops at a pond or pothole along 

the way for a visit, that pond or pothole becomes jurisdictional, all 

the way from Texas to North Dakota. 

Senator FISCHER. Or Anselmo, Nebraska. 

Mr. BLANKENAU. Or in Anselmo. 

So, yes, it’s one of the real stretches, if you will, of a definition 

of what navigable waters are. 

Senator FISCHER. OK. Thank you. 

I have some questions for all of the witnesses. So I welcome any 

of you that would like to address these. 

We’ll begin with, do you believe that this proposed rule will clear 

up confusion regarding the jurisdiction of the Clean Water Act or 

do you think it will add to the confusion? You know, we’ve heard, 

I think, all of you bring that up in your testimony and in your comments. 

Commissioner, would you like to address that? 

123 

Ms. BORGESON. Well, we believe it will, and does, add confusion 

and it’s not defined properly. You know, in terms of counties, we 

do two basic routine maintenance tasks that all counties do. We— 

the cleaning and repairing of roadside ditches and the ongoing 

maintenance of unimproved roads. And so it’s imperative and, 

again, it’s just not clear, as to whether or not that routine maintenance of those right-of-ways and those ditches are included in the 

needs of these permits. We believe that the new rule does say that 

we would be, as counties, required to get permits for those ditches. 

In fact in the EPA’s video it says in it several times about how important it is for them to have control of the ditches. And so we’re 

very concerned, again, of the length Mr. Crabtree talked about of 

already overworked workers in the agencies, this just exacerbates 

it. And, again, it’s just very unfair. 

Senator FISCHER. OK. Thank you. 

Ms. COOKSLEY. Ms. COOKSLEY. I too feel it would be burdensome. It does not 

clarify. Every day I have to go out on the land, I need to be able 

to know what it is that I can do, because I am going out there to 

manage the land for the long-term viability of the land, keep the 

hills covered in grass, protect the wildlife, that I enjoy every day, 

and still maintain a sustainable business. 

Senator FISCHER. Thank you. 

Don. 

Mr. WISNIESKI. I don’t have a whole lot to add to that. I’ll pass 

it on and let somebody else have the time. 

Senator FISCHER. John. 

Mr. CRABTREE. Senator, I actually really appreciate this question 

because I think this is one of the heart—sort of the heart of our 

discussion here. I absolutely respect that people have concerns 

about what the rule is going to—what the rule would do to—what 

jurisdiction of Clean Water Act would exist after the finalization 

rule. And Don and Wes and I, indeed, all of us on the panel probably all have six different viewpoints on what exactly that jurisdiction should end up being finally. The question about uncertainty 

though is a different question. Whether or not it—some opponents 

of the rule have said, well, the rule’s unclear, it’s—causes all these 

uncertainties, we don’t know what it means. But they also say that 

it expands jurisdiction. It seems like, you know, a fairly precise examination of it. I am the most troubled by the fact that the uncertainty that we worry about exists today, currently. As Miss 

Cooksley has very adequately described, ranchers and farmers need 

certainty to make long-range plans. Ranching in the Sandhills is a 

long-term venture. It’s not something you do this year and stop 

next year. I mean, it’s a life commitment and it requires that kind 

of certainty. But that doesn’t exist today. And from the Supreme 

Court Justice all the way down to little old me, people have said 

that we’re going to have to define what’s jurisdiction in order to 

provide that certainty. 

Now, we all—many of us want to quibble, and reasonably so, 

about, well, what should it be. And that’s one question that we 

should have that argument. But we also need to recognize the uncertainty that people say they hear in the rule exists today, and so 

they should hear it today too. We should also be talking about, we 

124 

need to do rulemaking like this, as the Chief Justice said. Because 

if we don’t, Barbara will still have that uncertainty, and every 

other rancher out there will. It still exists, what’s jurisdictional, 

what can I do, what can’t I. And short of hiring an attorney, and 

potentially going to court and all that to resolve those questions, 

they won’t have an answer. 

And so that’s what’s important, in our minds, the Center for 

Rural Affairs, in my mind, that’s what’s most important about this 

rulemaking, is providing a definition that’s clear and certain. And, 

again, we’re reasonable people, we’re more than happy to debate 

with the people about what exactly that definition should look like, 

and I think we should continue to debate that. But we have to get 

that question about would the rule provide certainty? Yes, it would. 

It absolutely would. It would provide certainty. That doesn’t exist 

today. 

Senator FISCHER. Thank you. 

Wes. 

Mr. SHEETS. Thank you. I’ll try and be very succinct and say, 

yes, I do believe this rule would provide some certainty. But I’d 

also qualify that by suggesting that my good friend and counteropponent on my panel here to my left, has expertise, and I would 

hope that in the final analysis that the rule would be promulgated 

or at least exposed or written in some final form and then subjected to whatever analysis that is appropriate to make the decision, whether it would work or not and what the ultimate determinations would be. And at that point then I would urge you, Senator, as a policymaker, to consider whether that’s good policy for 

our country or not. But I’d like to see what has been typed down 

on paper before I would want to commit to making it into the law. 

Senator FISCHER. Thank you. 

And, Mr. Blankenau, you’ll have the last word today. 

Mr. BLANKENAU. Oh, good. 

This past October, Justin Lavene and I had a case before the 

U.S. Supreme Court, and while we were engaged in argument, Justice Breyer made the observation that you could hardly find nine 

people less qualified to decide a water case than the Court. Which 

got a good laugh in the courtroom. But he, frankly, makes a point. 

I mean, these are people that are not schooled in hydrology, and 

making these kinds of decisions is difficult. I think the way the 

proposed rule is presently written it creates even more uncertainty 

than exists today. John’s absolutely right, there is uncertainty 

today and clarity is necessary. But this rule, I think, pumps 

steroids into that uncertainty rather than bring about some resolution. So I would prefer, and I think what I’m hearing many of these 

panelists say, is that the Corps and EPA go back to the drafting 

room table and rework this and to try to do exactly what they set 

out to do, and that’s to provide that certainty. 

Senator FISCHER. Thank you. 

As we wrap up the hearing this—today, this afternoon, I want 

to again express my gratitude to each of the witnesses for testifying 

today. We were privileged to hear a wide variety of different Nebraska stakeholders who provided details on the challenges families, businesses, communities will face if and when the administration finalizes the proposed Waters of the United States rule. 

125 

We are blessed to have great water resources in this State, and 

it is clear that this rule would only undermine the strong work of 

our State, Natural Resource Districts, local communities, and landowners in managing and protecting this precious natural resource. 

I have serious concerns about the process that EPA and the 

Corps used to draft this rule, and its disregard for states, small 

businesses, and local authorities. It is clear that imposing additional rules and permitting requirements on farmers, small businesses, and local governments will only create uncertainty, cause 

litigation and liability exposure, and drive up the time and costs 

of important projects. 

I have and will continue to support every legislative opportunity 

to force EPA and the Corps to withdraw this dangerous proposal. 

We should not be in the business of creating unnecessary regulations that generate more red tape. Instead, we need to explore policy options that promote growth and enable our job creators, communities, and especially our families to prosper. In doing so, I look 

forward to utilizing the insights provided by all the stakeholders at 

this meeting. 

And, again, I thank all of you for being here today. Thank you. 

And, with that, the hearing is now adjourned. 

[Whereupon, at 12:12 p.m., the hearing was adjourned.] 

[Additional material submitted for the record follows.] 

STATEMENT OF HON. BENJAMIN E. SASSE, U.S. SENATOR

FROM THE STATE OF NEBRASKA

Senator Fischer, thank you for convening a hearing on this topic in our great 

State and thank you for your leadership on this important issue in Congress. Issues 

concerning the expansion EPA’s jurisdiction over additional waters in the United 

States are absolutely critical to Nebraskans. To my fellow Nebraskans, I would note 

that our State and the country are very fortunate to have Senator Fischer serving 

on the Environment and Public Works Committee in the U.S. Senate. 

She understands these issues as well as anyone in Washington and is a relentless 

advocate for common sense in a city that doesn’t understand the challenges our 

farmers and ranchers face. This Committee has jurisdiction over many agencies that 

implement areas of Federal law that touch industries throughout our state. The 

EPA is just one prominent example of such an agency. The country will be the beneficiary of Senator Fischer’s leadership on this Committee because of her deep experience in transportation, commerce, and agriculture issues. I firmly believe my work 

on the Senate Agriculture, Nutrition, and Forestry Committee will be informed by 

her experience and counsel. 

Senator Fischer, thank you also for inviting these Nebraskans here today to 

present testimony. I cannot think of a better way for our State to contribute to a 

discussion of an expansion of EPA’s jurisdiction. To the witnesses, thank you in advance for you preparation and contributions to this important topic. Thank you also 

for your care for our State and national waters. Federal law cannot hope to adequately protect our waters without citizens who accept the responsibility of being 

committed caretakers. Nebraskans are committed stewards of our state’s waters and 

those that wind their way through our great country. They are also deeply committed to restoring control to Nebraskans of environmental issues that are properly 

addressed through State and local jurisdictions. 

As importantly, Nebraskans accept the responsibility and embrace the challenges 

of directing our own affairs. As I traveled Nebraska’s 93 counties, I heard time and 

time again from many expressing the view that good ideas and proper policy is not 

the exclusive domain of Washington D.C. and the Federal regulations that spring 

from the power unwisely concentrated there. I look forward to reviewing the testimony submitted at today’s hearing and learning from it better ways to improve our 

environment and ensure that we pass freedom and prosperity to those in our State 

and beyond that will inherit our land, water, and economic freedoms. 

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