[Congressional Record Volume 148, Number 102 (Wednesday, July 24, 2002)]
[Senate]
[Pages S7310-S7311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD:
  S. 2780. A bill to amend the Federal Water Pollution Control Act to 
clarify the jurisdiction of the United States over waters of the United 
Sates; to the Committee on Environment and Public Works.
  Mr. FEINGOLD. Mr. President, I rise today to introduce important 
legislation to affirm Federal jurisdiction over isolated wetlands. I am 
please to be joined by Representatives Oberstar and Dingell, who are 
today introducing companion legislation in the House of 
Representatives.
  In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency 
of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 
majority limited the authority of Federal agencies to use the so-called 
migratory bird rule as the basis for asserting Clean Water Act 
jurisdiction over non-navigable, intrastate, isolated wetlands, 
streams, ponds, and other waterbodies.
  This decision, known as the SWANCC decision, means that the 
Environmental Protection Agency and Army Corps of Engineers can no 
longer enforce Federal Clean Water Act protection mechanisms to protect 
a waterway solely on the basis that it is used as habitat for migratory 
birds.
  In its discussion of the case, the Court went beyond the issue of the 
migratory bird rule and questioned whether Congress intended the Clean 
Water Act to provide protection for isolated ponds, streams, wetlands 
and other waters, as it had been interpreted to provide for most of the 
last 30 years. While not the legal holding of the case, the Court's 
discussion has resulted in a wide variety of interpretations by EPA and 
Corps officials that jeopardize protection for wetlands, and other 
waters. The wetlands at risk include prairie potholes and bogs, 
familiar to many in Wisconsin, and many other types of wetlands.
  In effect, the Court's decision removed much of the Clean Water Act 
protection for between 30 percent to 60 percent of the Nation's 
wetlands. An estimate from my home state of Wisconsin suggested that 
more than 60 percent of the wetlands lost Federal protection in my 
State. My State is not alone. The National Association of State Wetland 
Managers have been collecting data from states across the country. For 
example, Nebraska estimates they will lose more than 40 percent of 
their wetlands. Indiana estimates they will lose 31 percent of total 
wetland acreage and 74 percent of the total number of wetlands. 
Delaware estimates the loss of 33 percent or more of their freshwater 
wetlands. These wetlands absorb floodwaters, prevent pollution from 
reaching our rivers and streams, and provide crucial habitat for most 
of the nations ducks and other waterfowl, as well as hundreds of other 
bird, fish, shellfish and amphibian species. Loss of these waters would 
have a devastating effect on our environment.
  In addition, by narrowing the water and wetland areas subject to 
Federal regulation, the decision also shifts more of the economic 
burden for regulating wetlands to State and local governments. My home 
State of Wisconsin has passed State legislation to assume the 
regulation of isolated waters, but many other States have not. This 
patchwork of regulation means that the standards for protection of 
wetlands nationwide is unclear, confusing, and jeopardizes the 
migratory birds and other wildlife that depend on these wetlands.
  Therefore, Congress needs to re-establish the common understanding of 
the Clean Water Act's jurisdiction to protect all waters of the U.S. 
the understanding that Congress had when the Act was adopted in 1972 as 
reflected in the law, legislative history, and longstanding 
regulations, practice, and judicial interpretations prior to the SWANCC 
decision.
  The proposed legislation does three things. It adopts a statutory 
definition of ``waters of the United States'' based on a longstanding 
definition of waters in the Corps of Engineers' regulations. Second, it 
deletes the term ``navigable'' from the Act to clarify that Congress's 
primary concern in 1972 was to protect the nation's waters from 
pollution, rather than just sustain the navigability of waterways, and 
to reinforce that original intent.
  Finally, it 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, including the Commerce Clause, the Property 
Clause, the Treaty Clause, and the Necessary and Proper Clause. 
Additionally, the findings clarify Congress' view that protection of 
isolated wetlands and other waters is critical to protect water 
quality, public safety, wildlife, and other public interests, including 
hunting and fishing.
  I also am very pleased to be have the support of so many 
environmental and

[[Page S7311]]

conservation groups, and well as organizations that represent those who 
regulate and manage our country's wetlands such as Natural Resources 
Defense Council, Earthjustice, National Wildlife Federation, Sierra 
Club, and the National Association of State Wetland Managers. They 
know, as I do, that we need to re-affirm the Federal role in isolated 
wetland protection. This legislation is a first step in doing just 
that.
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