Oppose the Legislation to Reverse the Decision of the U.S. Supreme Court in the SWANCC Case and Reinstitute Broad Federal Authority over Isolated Wetlands on Private Property!

03/10/2003

• The House and Senate Introduced Legislation (H.R. 962 and S. 473) that Would Overturn the Supreme Court's Decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.
• If Enacted, the Legislation Would Provide Statutory Authority to Reinstitute the Broad Sweep of Clean Water Act Jurisdiction that Existed Prior to the SWANCC Decision.
• Please Contact your Senators and Representatives to Urge them to Withdraw H.R. 962 and S. 473.

On February 27, 2003, Legislation was introduced in both the House and Senate that would reestablish federal Clean Water Act jurisdiction over isolated waters, thereby overturning the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.

"The Clean Water Authority Restoration Act of 2003," H.R. 962 was introduced in the House of Representatives by Rep. James Oberstar (D-MN). An identical companion Senate bill, S. 473, was introduced by Sen. Jim Jeffords (I-VT). The legislation has been referred to the Committee on Environment and Public Works in the Senate, and the Committee on Transportation and Infrastructure in the House.

• H.R. 962 "The Clean Water Authority Restoration Act of 2003"
• S. 473 "The Clean Water Authority Restoration Act of 2003"

Prior to this legislation, on January 15, 2003, the Environmental Protection Agency and the Army Corps of Engineers has issued an Advance Notice of Proposed Rulemaking to clarify jurisdiction over isolated waters following the SWANCC case and it implied to restrict Federal jurisdiction only to "navigable" waters and should recognize, preserve, and protect the primary responsibility of states, local governments and private property owners to plan the development and use of private land and water resources in our nation. The National Grange strongly supports amending the Clean Water Act regulations to comply with the U.S. Supreme Court's decision in the SWANCC case (Please, refer to 2/20 National Grange Action Alert no.8)

The Supreme Court ruled in SWANCC case that federal authority under the Clean Water Act (CWA) does not extend to isolated waters. Current regulations define isolated waters as those waters, including wetlands, which are not connected or adjacent to interstate or actually navigable waters or their tributaries. Such waters and wetlands include prairie potholes, vernal pools, and ponds.

The Court held that the agencies' expansive definition of the statutory term "navigable" waters was so broad that the word "navigable" was effectively eliminated from the statute. The term "navigable", according to the Court, demonstrates that in enacting the CWA, Congress had in mind its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.

If enacted, the legislation would provide statutory authority to reinstitute the broad sweep of CWA jurisdiction that existed prior to the SWANCC decision, jurisdiction that was asserted originally by the regulatory agencies.

The National Grange's philosophy on wetlands jurisdiction policy is summarized in our policy book:

The National Grange supports the following guidelines for determining wetland areas and the use thereof: wetland designation can only apply to those areas that can be shown to be functioning as wetlands and have environmental value; wetland designation can only apply to those areas that can be scientifically shown as readily identifiable by their natural characteristics and should be classified and regulated to significantly show environmental value; wetland designation shall not apply to areas that are artificially created by irrigation, stock water ponds, or have been cropped for one of the last five years.

The National Grange supports legislation to improve the work­abil­ity of the wetlands regulatory program that would stream­line the wetlands permitting process; delin­eate wetlands by catego­ries based on value, function, and abun­dance; refine the wetland mitigation system; improve the system of compensation for private landowners; and increase the role of the states in the wetland permitting process.

The National Grange vigorously supports the principle that all decreed, appropriated, and adjudicated water rights rightful­ly belong to the various states for determination and administra­tion. We oppose any federal plan that infringes on states' water rights. In particular, any water resource planning that is conducted by state or federal agencies must respect both the states' sovereignties and the agricultural sector.

The National Grange opposes the taking of individuals' water and water rights by federal government agencies. The National Grange will organize a nationwide effort to oppose federal government agencies' taking of individual water and water rights.

Action Plan --- Please contact your Senators and House Representatives to urge them to withdraw H.R. 962 and S. 473. Please express your support of the definition of "isolated waters" and "waters of the U.S.", which is consistent with the opinion of the SWANCC ruling.

Please click the following if you want to find contact information.
Senators
House Representative

Also, please contact the leaders in the Committee on Environment and Public Works in the Senate, and the Committee on Transportation and Infrastructure in the House and let them know you strongly oppose H.R. 962 and S. 473.

If you have any questions or comments please contact Legislative Research Analyst Chil-Sook Hwang by fax: 202-347-1091 or by phone: 1-888-4GRANGE, ext 109. Thank you for your grassroots participation in the National Grange Legislative program.

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