Bill Would Restore Protection to Isolated
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
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."