State Fish & Wildlife Agencies Support Restoration of Previous Clean Water Act Jurisdiction

The Association of Fish and Wildlife Agencies appreciates the action of the Senate Environment and Public Works Committee in reporting the Clean Water Restoration Act out of committee today with a favorable substitute amendment to tightly restore previous jurisdiction.

The amendment to the bill would restore Clean Water Act jurisdiction over isolated, intrastate wetlands and intermittent streams, which are vital habitats for fish and wildlife, to the jurisdictional application that existed prior to two recent Supreme Court decisions (SWANCC,2001; and Carabell-Rapanos,2006). The substitute language is very tightly drafted to only restore previous jurisdiction and not expand jurisdiction. It also imports into statute the U.S. Environmental Protection Agency (EPA) rule defining "waters of the United States.”

In support of the favored amendment to the bill, the Association joined with five other state executive branch organizations -- the Environmental Council of the States, the Association of State Wetland Managers, the Association of State and Interstate Water Pollution Control Administrators, the Association of State Floodplain Managers and the Coastal States Organization -- in sending a letter to the Senate Environment and Public Works Committee and its Chairman Senator Barbara Boxer (CA), on June 10, 2009.

The letter states:

“We have reviewed the compromise language for the Clean Water Restoration Act that your staff and the offices of Senators Baucus and Klobuchar reached as of June 10, 2009. We endorse this approach to solving the nation's Clean Water Act jurisdictional issues.

We believe that the clarified definition of “waters of the United States” will achieve a definitive return to the Act as it was without increasing or reducing the scope of its jurisdiction. The exemptions for agriculture, silviculture and other activities would remain in place. Further, we believe that the compromise language's reliance on the previous regulatory definition and interpretations of it neither broadens or lessens federal authority, nor causes a loss of states’ rights. We note that the compromise language makes findings that assert that “ground waters” and certain manmade artificial waters are not included in the jurisdiction of the Act. Also, the compromise language explicitly grounds these Clean Water Act protections within the scope of Congress' constitutional authorities.

We strongly encourage Congress and the Administration to continue to work together to make State Assumption of Section 404 a viable option, as it is for other sections of the Act. Primarily, a new authority is needed that authorizes EPA to provide states with grants to implement wetlands protection programs.

We are hopeful that the bill will pass out of committee and be enacted by the Senate at its earliest opportunity. Thank you for considering our views.”

View the letter >