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Coastal & Marine Issues -  Vernal Pools

Support Legislation to Restore Vital Clean Water Protections

On July 24, 2002, Senator Russ Feingold (WI) and Congressmen James Oberstar (MN) and John Dingell (MI) introduced important legislation to protect wetlands and other waters. The Clean Water Authority Restoration Act of 2002, S. 2780 and H.R. 5194, responds to the 2001 U.S. Supreme Court ruling which dealt a serious blow to the protection of the nation's waters by narrowing federal authority to control water pollution.

The Supreme Court ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers overturned the federal government's long-held authority under the Clean Water Act to protect non-navigable, intrastate, isolated wetlands, streams and other waterbodies from pollutionbased on their use by migratory birds. The Court's 5-4 majority opinion went beyond the ruling by throwing into question whether federal Clean Water Act protections apply to any wetlands, streams and other waters that may be considered isolated.

In the wake of confusion created by the Court's opinion, varying interpretations have been applied by the agencies and inthe courts. In some areas of the country, the ruling was seen as setting aside federal protection of all waters that are not immediately adjacent to rivers and streams used for navigation. Isolated wetlands and other waters, including prairie potholes, playa lakes, bogs, fens, vernal pools, Carolina Bays and other systems provide floodwater storage, filtration of pollutants, recharge of groundwater and critical habitat for many species of birds, fish and wildlife. 

For more than 18 months, the Bush administration has failed to issue guidance interpreting the Court's ruling. So-called "isolated" waters provide critical ecological functions, and yet they are at risk of being considered beyond the reach of the Clean Water Act, if regulatory officials and courts apply the non-scientific standard that such waters do not have a direct surface connection to other bodies of water. It is estimated that as much as 20 to 30 percent of the nation's wetlands might be deemed "isolated" on that basis. In the short term, guidance would limit the ability of regulatory officials and others to make arbitrary decisions removing wetlands from jurisdiction. 

S. 2780 and H.R. 5194 provide the long-term solution. The legislation would clarify that Congress intends for Clean Water Act protections to apply to all such waters as waters of the United States, based on a longstanding definition of waters of the United States in Army Corps of Engineers regulations. The bills would also delete the word "navigable" from the Clean Water Act to clarify that the primary concern of Congress in 1972, and now, is the protection of the nation's waters from pollution, rather than just to sustain the navigability of waterways.

In a statement applauding the legislation, Sierra Club Environmental Quality Director Ed Hopkins noted, "this bill clarifies that Congress intends for Clean Water Act protection to extend to all of the nation's waters, including the so-called isolated wetlands, streams, ponds and other waterbodies that play such an integral role in our environment?

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 continued. "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 for the many species that depend on our waters, we should safeguard all the various kinds of waterbodies."

A few states have their own regulations that limit pollution discharges, filling, ditching and draining affecting isolated waters. The majority of states do not have laws and regulations to fill the void. In the wake of the SWANCC ruling, Sierra Club helped wage a successful effort in Senator Feingold's home state of Wisconsin to adopt a new law to extend protection to isolated waters. Similar initiatives in a few other state legislatures during 2001-02 were not so successful.

In some states Sierra Club wetlands activists are continuing to build support for these state-level efforts, while recognizing that it is critically important for the floor of federal Clean Water Act protection of all the nation's waters to be restored. In announcing his legislation, Senator Feingold noted, "The patchwork of regulation created in the wake of the Supreme Court ruling means that the standards for protection of wetlands nationwide is unclear, confusing, and jeopardizing the migratory birds and other wildlife that depend on these wetlands. 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."

In an Aug. 1, 2002 editorial, "Save the Prairie Potholes", the Washington Post endorsed the legislation and noted that it "deserves strong support and prompt action by Congress." Sierra Club members should contact their members of Congress and urge them to co-sponsor S. 2780 and H.R. 5194. The legislation is available for review at http://thomas.loc.gov. For more information, visit www.sierraclub.org/wetlands or contact Robin Mann, Sierra Club National Wetlands Working Group, robinmann@earthlink.net, or 610-527-4598. 

For information on the wetlands and waters affected by the SWANCC ruling, by region, and the important habitat functions at risk, visit www.nwf.org or www.nrdc.org  to review a new study released by the National Wildlife Federation and the Natural Resources Defense Council, entitled "Wetlands at Risk: Imperiled Treasures". The U.S. Fish and Wildlife Service has issued a report on Geographically Isolated Wetlands, available at http://wetlands.fws.gov/.