After a series of court decisions that muddy the waters on definitions for wetlands, efforts are gathering steam on Capitol Hill to clarify the Clean Water Act, so as to ensure protection of critical wetland habitats, reports the Wildlife Management Institute. The Clean Water Restoration Act (HR. 2421), introduced by Representative James Oberstar, and the Water Resources Restoration Act (S. 1870), introduced by Senator Russell Feingold, currently have 173 cosponsors in the House and 20 cosponsors in the Senate. The main focus of each bill is to define clearly the waters of the United States that are subject to the Clean Water Act of 1972. However, not everyone thinks the legislation is the right approach.

Several Supreme Court decisions in recent years (Rapanos v. United States and Carabell v. United States, as well as the Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers) significantly damaged the foundation of wetland protection in this country. The cases focused on the jurisdiction of the Clean Water Act over small, isolated wetlands. By restricting interpretation of waters protected by the Clean Water Act only to navigable waterways and their adjacent wetlands, years of wetland-conservation efforts were undermined. After the court decisions and subsequent rulemaking by the U.S. Army Corps of Engineers (Corps), between 40- and 80-million wetland acres lost protection, including critical wetland breeding areas, such as prairie potholes, playa lakes and rainwater basins.

The decisions created such confusion that Chief Justice Roberts stated, "It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis."

The bills currently before Congress look to address the confusion by replacing "navigable waters of the United States" with "waters of the United States" throughout the act amendment. Testifying at a recent Senate hearing about the impacts of the Supreme Court decisions, Ducks Unlimited senior scientist Scott Yaich provided the perspective that, whereas some wetlands might appear to be geographically isolated, there are virtually no wetlands that are hydrologically and ecologically isolated. Nearly all wetlands are inherently linked to the country's navigable rivers, lakes and streams, and to groundwater supplies.

Some members of Congress, developers, states and even some conservation organizations do not believe the approach taken by the Clean Water Restoration Act is appropriate. Senate Environment and Public Works Committee Ranking Member, Sen. James Inhofe stated, "The regulated community has never understood where federal jurisdiction ends and. . .the agencies have in fact gradually expanded the scope without going through the necessary processes to increase federal reach into local land use decisions." Inhofe added, "There was a SWANCC decision because there was uncertainty. The regulated community believed that the Corps had overstepped its authority under the statute. Importantly, the Supreme Court agreed, striking down the Corps' use of the Migratory Bird Rule to exert jurisdiction over isolated, nonnavigable, intrastate waters that clearly did not support interstate commerce, the basis for the Clean Water Act's regulatory authority."

On February 5, opposition to the approach took a new direction when the South Dakota State Senate unanimously passed a resolution opposing the bills. The resolution claims that the proposed change to the Clean Water Act will negatively affect both states and localities and that H.R. 2421 would vastly expand the Clean Water Act and increase federal government control over our lives and property.

Although the House Committee on Transportation and Infrastructure and the Senate Environment and Public Works Committee each has held hearings on the issue, neither bill has moved forward to a vote. (jas)