As Nebraska’s Attorney General, it is my responsibility to defend Nebraskans’ interests and rights against federal government overreach. In January, the Biden Administration’s Environmental and Protection Agency imposed a new rule broadly regulating bodies of water across the country. The rule, called the Waters of the United States rule (WOTUS), will saddle farmers and ranchers with costs and force them to navigate federal red tape. It is unlawful because it exceeds the authority given by the people to the federal government under our Constitution. We responded in February by joining with 23 other states in suing the Biden Administration in federal court and seeking expedited relief.
Water is the lifeblood of our communities, and it is critical for our state’s most important industry, agriculture. While often we think of Nebraska’s water sources in terms of the large bodies of water, such as the Ogallala Aquifer, smaller bodies of water dot our state too. These include innumerable wells, springs, wetlands, ponds, lakes, irrigation systems, and drainage systems on both private and state property.
Historically, states were the primary regulators for these bodies of water. Construction projects, permitting, and discharge all were handled at the state and local levels. But the Biden Administration’s WOTUS rule inserts the federal government into the regulation of local bodies of water. Drainage ditches on the outskirts of Lincoln and small wetlands in Broken Bow would all be swept up in the WOTUS rule. In fact, the Administration’s proposed test brings nearly any body of water within the federal government’s orbit. The Administration’s rule would cover ponds, wetlands, and streams (even those that run dry for several years at a time!) that are entirely within Nebraska and not navigable at all. It is difficult to conceive of a body of water that would be left untouched by this rule.
The impact of this rule, if left in force, is profound and troubling. In Nebraska, the rule will stifle investment, impede our citizens’ freedom and property rights, and create untold costs and delays. Under this rule, Nebraskans who want to do projects on their property that involve these bodies of water might need federal permitting. And seeking a permit from the EPA can be slow and costly—one study found that an average application spends nearly 800 days (over two years!) and spent almost $30,000 on discharge permits.
A misstep could be met with severe penalties—even an inadvertent mistake in following the process could create criminal penalties. And if someone does not like what you are doing on your land? The statute permits “citizen suits,” which expose Nebraskans to nuisance lawsuits.
This is a mess. It will not matter if you live in a rural or urban area or are in an agricultural industry or not: the rule will impact ranchers, farmers, homebuilders, and property owners alike. It will not matter if you are a Democrat or a Republican.
The rule is an unfortunate continuation of the Biden Administration’s effort to centralize power far away from Nebraska—even if the Constitution says otherwise. Our lawsuit against the Biden Administration’s WOTUS rule aims to return authority to your local decision makers. As a former state senator, I speak from experience. Hearing from neighbors and other constituents—people you see at the grocery store, go to church with, and see going door to door—plays a critical role in our system that relies on the accountability of elected representatives to their neighbors. In our constitutional republic, we must accept nothing less.
We will continue to hold firm on the principle that the Constitution gives the federal government limited power because so many issues are best left to the elected representatives of the state.
