Since the beginning of time, water has been the driving force of all nature; humans, animals and plant life need water for sustenance and survival. Yet, the water supply on Planet Earth is not unending and limitless, and mankind has a duty to ensure that an ample supply of this vital resource is still available thousands of years from now. Should all the Earth’s sources of safe, clean drinking water be depleted, we do not have the technology to create more. As the Bible says in the Book of Samuel, “As water spilt on the ground, which cannot be gathered up again.”

We have not always been good, responsible stewards for the environment. By the 1970s, the waters in the United States were so filthy that they were unsafe for recreational activities, for swimming, drinking, and industry. Wetlands, which perform several vital functions in the environment, such as providing critical habitat for a variety of species, filtering pollutants, and reducing flooding, were being destroyed at an alarming rate. In 1972, Congress enacted a vast expansion of the 1956 Federal Water Pollution Control Act, re-designated as the Clean Water Act (CWA), a national program to protect America's waters, including its natural flood control systems and wildlife habitats. In this landmark legislation, Congress prohibited unrestrained ditching, drilling, draining, and drying of our nation’s wetlands.

Since the CWA was enacted nearly 35 years ago, the law has been interpreted to cover all navigable waters of the United States, as well as non-navigable tributaries of traditional navigable waters. However, the U.S. Supreme Court significantly narrowed the scope of the CWA’s protection over the nation’s wetlands in a 2001 decision in the case of Solid Waste Agency of North Cook County v. U.S. Army Corps of Engineers, commonly known as SWANCC. Specifically, the court limited federal jurisdiction under the CWA to regulate isolated wetlands and questioned the federal government’s authority over non-navigable tributaries.

The ruling created confusion, and consequently jeopardized federal CWA protections for millions of acres of waters and wetlands, because it left open to interpretation which wetlands are in fact “isolated.” For instance, seemingly separate wetlands are often connected by water overflow or by groundwater. Wetlands encompass a rich variety of forms, from marshlands to small pools to ephemeral streams that pass through man-made conveyances. They may be permanent or temporary, reappearing from season to season or year to year, depending on precipitation. Yet, as much as 20 to 30 percent of America's wetlands have the potential to be deemed “isolated” by the executive branch, because of the absence of a direct surface connection to other bodies of water.

Although many isolated wetlands are small or exist only for a short period each year, their importance to a healthy ecosystem should not be underestimated. Among other factors, isolated wetlands filter pesticides and other pollutants from ground water, thereby protecting downstream tributaries and rivers. They absorb flood waters, which mitigates potential damage to life and property. Also, they play a role in meeting the needs of waterfowl and other wildlife for breeding and migration. According to Environmental Protection Agency (EPA) estimates, 43 percent of threatened and endangered species, such as the whooping crane, rely on wetlands for their survival. The loss of even small wetlands can wipe out whole populations of vulnerable amphibians or unusual plant communities.

Prior to the SWANCC decision, property owners had to apply for a permit from the U.S. Army Corps of Engineers (Corps) before destroying isolated wetlands, but the ambiguity of the court’s ruling removed many isolated wetlands from the umbrella of federal protection. Although some states have enacted strong environmental protections, other states have virtually no protection of waterways and water sources located within their borders.

By needlessly weakening the principal safeguard against toxic water, the court handed the Bush Administration the ability and authority to allow the degradation and destruction of waters across the nation. In 2003, the EPA and the Corps issued revised guidance in a joint memorandum to their field offices that expanded the scope well beyond what the court directed in SWANCC and significantly altered Congress’ intent in the CWA by leaving a substantial number of lakes, streams, and wetlands unprotected. This overly broad interpretation of the SWANCC decision further weakened federal authority and reduced enforcement capability under the CWA, because it prohibited EPA and Corps field staff from asserting jurisdiction over various wetlands and small streams without getting prior approval from agency headquarters. The potentially devastating results of hamstringing enforcement efforts are the loss of habitat for a range of wildlife and plant life, greater frequency and severity of flooding in populated areas, and additional risk to drinking water and polluted groundwater supplies.

A bipartisan group of 218 Members of Congress, environmental agencies from 39 states, and groups representing conservationists, anglers and hunters strongly opposed this ill-conceived plan, which would affect at least one-fifth of the nation’s water. In response, the Bush Administration announced that the EPA and the Corps would not proceed with a new rule on federal regulatory jurisdiction over isolated wetlands, and the administration reiterated its “commitment” to the goal of "no net loss" of wetlands in the United States.

To assure continuity of the CWA, I introduced the Clean Water Authority Restoration Act of 2005 (H.R. 1356), which will reaffirm the federal authority that existed prior to the Supreme Court’s SWANCC ruling, and restore federal and state government authority to maintain the integrity of the nation’s waters. Specifically, this bipartisan bill substitutes the term “navigable waters” with the term “waters of the United States” – thus eliminating any ambiguity related to federal jurisdiction and authority. By preventing the EPA Administrator from implementing or enforcing unsound wetlands policy, this legislation would restore Congress’ original intent for the CWA when it was enacted in 1972:

“The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” [Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, 86 Stat. 816, et seq, codified as amended at 33 U.S.C., Section 1251]

Each year, millions of Americans visit wetland areas to hunt, canoe and birdwatch. Without Congressional action, we will be unable to reestablish protection to drinking water, recreational waters, and the waters which are so important and precious to fish, wildlife, and conservationists. Congress has an inherent duty as conservators and protectors of the nation’s limited natural resources, and above all else, the precious waters of the United States. Without this bill, streams, ponds, wetlands will continue to endure unregulated wastewater discharges and other destructive impacts. Unless we act quickly to protect the nation’s wetlands, they may be lost forever.