For Immediate Release

Thursday, February 27, 2003

Contact: Jim Berard

(202) 225-6260

 

 

Oberstar Supports SWANCC Reversal

 

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WASHINGTON—Following is a statement by Rep. James L. Oberstar (Minn.), Ranking Democratic Member on the House Transportation and Infrastructure Committee on the introduction of legislation to expand the protection of our nation’s wetlands:

 

Today we are 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 Bush 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 Bush 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.

 

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, Izaak Walton League of America and Clean Water Network support this legislation. 

 

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