Wetlands
that are isolated from navigable waterways, like this Wisconsin bog, lost
federal protection under the Supreme Court decision.
(Photo courtesy
Wisconsin Wetlands
Association)July 25, 2002
BILL WOULD RESTORE PROTECTION TO ISOLATED WETLANDS
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.
Wetlands
that are isolated from navigable waterways, like this Wisconsin bog, lost
federal protection under the Supreme Court decision.
(Photo courtesy
Wisconsin Wetlands
Association)
"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.
Isolated
wetlands provide crucial habitat for nesting and migrating birds.
(Photo by Stephan Dobert courtesy USFWS)
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."
