[Senate Hearing 114-23]
[From the U.S. Government Publishing Office]





                                                         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


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             FIRST SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
               
               
               
               
               
               
               
               
               
               
               
               
               
                            C O N T E N T S

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                                                                   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

 
 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.
    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.
    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 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 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:]
   
   [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    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 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?
    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 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 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 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 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.
    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 
president-elect 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 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.
    [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 non-wetlands, 
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.
    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, 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 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.
    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 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 state-based 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:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    
    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 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 situation 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, 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 
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. 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 because 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.
    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 putting 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 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 
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?
    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 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 
counter-opponent 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.
    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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