Senator Brasch and 26 Other Senators Send Letter to EPA

Senator Lydia Brasch, District 16, submitted a letter last week to the United States Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) to convey strong opposition to the proposed definition of “Waters of the United States” (WOTUS). Signed by 26 other Nebraska State Senators, the letter criticizes the broad scope of the new rule and urges the EPA and Corps to work cooperatively with Nebraska’s state and local agencies.

 

Emphasizing concerns expressed by landowners, especially those involved in agriculture, Senator Brasch said, “The proposed definition poses a very serious threat to our individual property rights because all waters, from farm ponds to streams, in Nebraska could be subject to federal control. Farmers, ranchers, and other landowners could see increased federal government regulations over portions of their land.”

 

 

The Honorable Gina McCarthy                                                   The Honorable John M. McHugh

Administrator                                                                                                                      Secretary

U.S. Environmental Protection Agency                                                     Department of the Army

1200 Pennsylvania Avenue, NW                                                           The Pentagon, Room 3E700

Washington, D.C. 20460                                                                             Washington, D.C. 20310

RE: Opposition to Proposed Definition of “Waters of the United States”

Dear Administrator McCarthy and Secretary McHugh:

As Members of the Nebraska Unicameral Legislature, we write you in opposition to the Environmental Protection Agency’s (EPA) proposed definition of “Waters of the United States” under the Clean Water Act (CWA).

We are especially concerned about the effect this rulemaking will have on our farmers, ranchers, and other landowners in the state of Nebraska. Under the new definition, streams, farm ponds, and irrigation ditches, among other waters, could be considered “waters of the United States.” This brings the potential for cumbersome oversight and convoluted permitting processes.

Essentially a catch-all provision for waters that do not otherwise meet the broad scope of definitions listed in the rule, the “other waters” provision gives us great trepidation. Under this category, any and all waters showing a “significant nexus” to traditional navigable waters will be federally controlled. This is a tenuous regulatory interpretation of the CWA that gives the federal government virtually limitless control of currently state-controlled waters. Not only does this irreconcilably supersede the clear intent of Congress, but it undermines the Supreme Court decisions in SWANCC and Rapanos, which determined that the EPA and the Corps do not have limitless authority over water.

We share the concerns of the Western Governors’ Association: “[W]e are concerned that this rulemaking was developed without sufficient consultation with the states and that the rulemaking could impinge upon state authority in water management.”

The authority of the individual states to manage the water located within their boundaries is unambiguously recognized in the CWA. Section 101(g) of the Act establishes this right and the duty of federal agencies to work cooperatively with state and local agencies:

It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act. It is the further policy of Congress that nothing in this Act shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall co-operate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.

The proposed rule undermines this specific, express charge by Congress because it does not allow states to maintain their sovereignty with regard to water management, opting instead for a one-size-fits-all determination by federal agencies.

It is our hope that federal agencies will work cooperatively with Nebraska and other states to harmoniously address environmental concerns, state sovereignty, and individual landowner rights. According to the Western Governors’ Association, in its letter dated March 25, that cooperative relationship was not established during the rulemaking process. Therefore, we urge you to include Nebraska’s state and local leaders, as well as state and local leaders nationwide, in this rulemaking process.

Thank you for your time and consideration. We look forward to future collaboration with you.

Sincerely,

 

 

 

Lydia Brasch

District #16

Kate Sullivan

District #41

 

Tom Carlson

District #38

 

Mark Christensen

District #44

 

Colby Coash

District #27

 

Al Davis

District #43

 

Annette Dubas

District #34

 

Tommy Garrett

District #3

 

Tom Hansen

District #42

 

John Harms

District #48

 

Charlie Janssen

District #15

 

Jerry Johnson

District #23

 

Bill Kintner

District #2

 

Bob Krist

District #10

 

Beau McCoy

District #39

 

John Murante

District #49

 

John Nelson

District #6

Pete Pirsch

District #4

 

Jim Scheer

District #19

 

Paul Schumacher

District #22

 

Les Seiler

District #33

 

Jim Smith

District #14

 

Norm Wallman

District #30

 

Dan Watermeier

District #1

 

Galen Hadley

District #37

 

Mike Gloor

District #35

 

Kathy Campbell

District #25

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