[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 4910-4911]
[From the U.S. Government Publishing Office, www.gpo.gov]




   INTRODUCTION OF THE CLEAN WATER AUTHORITY RESTORATION ACT OF 2003

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                         HON. JAMES L. OBERSTAR

                              of minnesota

                    in the house of representatives

                      Thursday, February 27, 2003

  Mr. OBERSTAR. Mr. Speaker, today I am introducing legislation to 
restore protection from destruction and pollution to all of the 
Nation's waters, including wetlands. This bill will amend the Clean 
Water Act to reestablish the original intent of Congress in that 1972 
law to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.
  In January 2001, the Supreme Court issued an opinion that denies 
federal Clean Water Act protection for thousands of acres of waters 
that serve as habitat for migratory birds. Congress must approve this 
bill to overturn that decision--the Solid Waste Agency of Northern Cook 
County v. Army Corps of Engineers (The SWANCC case). This case was 
decided 5-4 contrary to the intent of Congress and against the grain of 
nearly 30 years of judicial and administrative precedent.
  Unfortunately, since the Court's decision, the Administration has 
done nothing to rectify this misguided and misinformed undermining of 
Federal protections over waters of the United States, including 
wetlands. Where the environmentally responsible position to limit the 
impact on our nation's environment would have been to narrowly 
interpret the SWANCC decision and to support Congressional action to 
overturn this decision, the Administration has, instead, proposed to 
explore amending its rules and regulations to expand the list of waters 
not covered by the Clean Water Act. Instead of supporting efforts to 
correct the damage, the Administration's action continues the 
abandonment of at least one-fifth of the nation's waters. This is 
unconscionable.
  Until the Supreme Court's decision in the SWANCC case, section 404 of 
the Clean Water Act served as the primary federal protection for 
wetlands that serve important habitat, flood control and water quality 
improvement functions. In the absence of section 404 protection, small, 
isolated waters, including wetlands, could be filled or drained without 
regard to the impact on the environment or human needs.
  The Supreme Court has adopted a very narrow reading of the intent of 
Congress in drafting the Clean Water Act and has determined that 
protection of small water bodies is beyond the reach of the Act. As is 
stated in the dissenting opinion, ``the Court takes an unfortunate step 
that needlessly weakens our principal safeguard against toxic water.'' 
I agree and would further observe that the Court's decision opens an 
opportunity for waters across the Nation to be destroyed and degraded--
and one which this Administration is all too willing to exploit.

[[Page 4911]]

  A bedrock objective of the Federal Water Pollution Control Act 
Amendments of 1972 was to restore and maintain the chemical, physical, 
and biological integrity of the Nation's waters. The legislative 
history and the statutory language of the Clean Water Act make it 
abundantly clear that Congress intended the broadest possible 
constitutional interpretation for the provisions of this precedent-
setting law.
  The essence of the Supreme Court's opinion is that when Congress used 
the term ``navigable waters'' in the Clean Water Act, Congress intended 
that there be some nexus to actual navigation and commerce. Congress, 
in the Clean Water Act, was very deliberate and careful to define 
``navigable waters'' as, ``the waters of the United States, including 
the territorial seas.'' Likewise, the legislative history and court 
decisions prior to SWANCC have given the term ``navigable waters'' the 
broadest possible interpretation.
  The proposed legislation will eliminate the use of the term 
``navigable waters'' throughout the Clean Water Act and replace it with 
``waters of the United States.'' A definition of waters of the United 
States also would be added to mean coastal waters, territorial seas, 
all interstate and intrastate bodies of water (including tributaries) 
to the full extent that they are subject to the power of Congress under 
the Constitution; specifically including a river, stream, lake, natural 
pond, mudflat, sandflat, wetland, slough, prairie pothole, wet meadow, 
playa lake, natural pond, and an impoundment to any of these waters. 
The proposed definition is a combination of long-standing 
interpretations of jurisdiction by the Environmental Protection Agency 
and the Corps of Engineers prior to the January 2001 decision. The bill 
restores Clean Water Act authority; the bill does not expand that 
authority.
  Trout Unlimited, National Audubon Society, National Wildlife 
Federation, Sierra Club, American Rivers, Clean Water Network, Natural 
Resources Defense Council, Earthjustice, Defenders of Wildlife, U.S. 
Public Interest Group, Association of State Floodplain Managers, The 
Ocean Conservancy, the Izaak Walton League of America, and Clean Water 
Network support this legislation.

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