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Great Lakes Article:

Bill Would Restore Protection to Isolated Wetlands

By Cat Lazaroff

WASHINGTON, DC, July 24, 2002 (ENS) - Legislation introduced in Congress today would restore federal protection for millions of acres of wetlands that provide habitat for birds and other wildlife. Supporters of the legislation say it will restore the original intent of the Clean Water Act of 1972 by overriding a Supreme Court decision that removed federal protection for isolated wetlands.

U.S. Senator Russ Feingold, a Wisconsin Democrat, was joined by Representatives James Oberstar of Minnesota and John Dingell of Michigan, both Democrats, to introduce the Clean Water Authority Restoration Act of 2002.

  "The patchwork of regulation created in the wake of the Supreme Court ruling means that the standards for protection of wetlands nationwide are unclear, confusing, and jeopardize the migratory birds and other wildlife that depend on these wetlands," Feingold said. "Congress needs to reestablish the common understanding of the Clean Water Act's jurisdiction to protect all waters of the U.S. - the understanding that Congress had when it adopted the Act in 1972."

The bill aims to protect isolated wetlands, which contribute to the health of all waterways by absorbing flood waters, preventing pollution from reaching rivers and streams, and providing habitat for most of the nation's ducks and other waterfowl, as well as hundreds of other bird, fish, shellfish and amphibian species.

On January 9, 2001, the U.S. Supreme Court ruled that the U.S. Army Corps of Engineers had exceeded its statutory authority by asserting it had jurisdiction, under the Clean Water Act, over ponds used by migratory birds in an Illinois case. Because state wetland protection rules are often based on the Corps' authority to act under the federal Clean Water Act, the court decision affected the states' abilities to protect millions of acres of wetlands.

While lawyers for the Corps and the U.S. Environmental Protection Agency (EPA) took a more narrow interpretation of the court's decision, their interpretation limited the ruling's scope to wetlands with no connection to any lake, stream or other water considered to be navigable water of the United States.

Besides the environmental impacts of the Supreme Court decision, by narrowing the water and wetland areas subject to federal regulation, the ruling also shifted more of the economic burden for regulating wetlands to state and local governments.

The legislation introduced today would adopt a statutory definition of "waters of the United States" based on a longstanding definition of waters in the Corps of Engineers' regulations. The bill would delete the term "navigable" from the Clean Water Act to clarify that Congress's primary concern in 1972 was to protect the nation's waters from pollution, rather than just to sustain the navigability of waterways, and to reinforce that original intent.

  The bill also includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over waters and wetlands, including those that are called isolated, on all relevant constitutional grounds.

"These wetlands are not isolated from wildlife, they are a haven for birds, and the Supreme Court decision seriously undercuts their protections," said Bob Perciasepe, senior vice president for public policy at the National Audubon Society. "Millions of birds depend on isolated wetlands for their survival."

More than half of the duck population of the United States breeds in isolated wetlands known as prairie potholes, for example. Prairie potholes also provide habitat for endangered species including piping plovers and bald eagles. These wetlands are in danger of disappearing as more land is used for agriculture and development.

"This bill clarifies that Congress intends for Clean Water Act protection to extend to all of the nation's waters," said Ed Hopkins, director of the Sierra Club's environmental quality program.

"Thirty years after the Clean Water Act was passed to 'restore and maintain the chemical, physical and biological integrity of our nation's waters,' we know a whole lot more about how to make that happen," Hopkins added. "We know that streams, ponds and wetlands interact and function together as part of our water environment. They are really not isolated, and if we want to minimize flooding, have clean water, and provide habitat to the many species that depend on our waters, we should safeguard all the various kinds of water bodies."

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