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(CWA) wetlands protections solely on the basis that a waterbody is used as habitat for migratory
<br />birds. In Solid Waste Agency of Northern Cook County (SWANCC), a 5 -4 decision limited the
<br />agencies' authority to use the so- called migratory bird rule as the basis for asserting jurisdiction over
<br />non - navigable, intrastate, isolated wetlands, streams, ponds, and other bodies of water. Identical
<br />legislation (H.R. 1356) was introduced in the House on March 17, by Rep. James Oberstar (D -MN),
<br />and referred to the Transportation and Infrastructure Committee's Water Resources and Environment
<br />Subcommittee.
<br />In his introductory remarks, Senator Feingold noted, "In its discussion of the case, the Court
<br />went beyond the issue of the migratory bird rule and questioned whether Congress intended the
<br />Clean Water Act to provide protection for isolated ponds, streams, wetlands and other waters, as it
<br />had been interpreted to provide for most of the last 30 years. While not the legal holding of the case,
<br />the Court's discussion has resulted in a wide variety of interpretations by EPA and Corps officials
<br />that jeopardize protection for wetlands, and other waters." He stated, "My home State of Wisconsin
<br />has passed legislation to assume the regulation of isolated waters, but many other States have not.
<br />This patchwork of regulation means that the standards for protection of wetlands nationwide are
<br />unclear and confusing, jeopardizing the migratory birds and other wildlife that depend on these
<br />wetlands.... These wetlands absorb floodwaters, prevent pollution from reaching our rivers and
<br />streams, and provide crucial habitat for most of the Nation's ducks and other waterfowl, as well as
<br />hundreds of other bird, fish, shellfish and amphibian species. Loss of these waters would have a
<br />devastating effect on our environment." He added, "In addition, by narrowing the water and wetland
<br />areas subject to federal regulation, the decision also shifts more of the economic burden for
<br />regulating wetlands to state and local governments."
<br />The proposed legislation's stated purpose was to "provide protection to the waters of the
<br />United States to the fullest extent of the legislative authority of Congress under the Constitution."
<br />It included a number of findings that explain the basis for Congress to assert its constitutional
<br />authority over waters and wetlands on all relevant constitutional grounds, including the Commerce
<br />Clause, the Property Clause, the Treaty Clause, and Necessary and Proper Clause.
<br />The bill would redefine the term "waters of the United States [as] ... all waters subject to the
<br />ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their
<br />tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats,
<br />wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments
<br />of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject
<br />to the legislative power of Congress under the Constitution." Further, it would strike the term
<br />"navigable waters of the United States" wherever it appears and insert therein "waters of the United
<br />States."
<br />State Revolving Funds
<br />On June 20, the Senate Environment and Public Works Committee ordered reported a $3813
<br />bill, the Water Infrastructure Financing Act (S. 1400). It would authorize an additional $2013 for the
<br />Environmental Protection Agency's (EPA) Clean Water State Revolving Fund and $1513 for the
<br />Drinking Water State Revolving Fund (DWSRF), as well as another $3B for grants (over the next
<br />five years). The bill was jointly introduced on July 14, by Senate Environment and Public Works
<br />Committee Chairman James Inhofe (R -OK), Senator James Jeffords (D -VT), the Ranking Minority
<br />Member, and Senator Hillary Clinton (D -NY). Senator George Voinovich (R -OH) is also a
<br />cosponsor.
<br />S. 1400 directed the Environmental Protection Agency Administrator to establish a program
<br />to provide grants to "eligible entities for use in carrying out projects and activities the primary
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