By: Scott McEwen
On July 24, 2002, The Clean Water Authority Restoration Act of 2002 (Senate Bill 2780) was introduced to “amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States”. If enacted, this Act would substantially amend the Federal Water Pollution Control Act of 1972, the Clean Water Act of 1977, and the Water Quality Act of 1987.
Among the most important changes that this Act would make is to recognize the ecological importance of intra-state waters, including waters that appear to be isolated. The Act recognizes that water is transported through interconnected hydrologic cycles, and that the pollution, impairment, or destruction of part of an aquatic system may affect the integrity of other interconnected parts of the aquatic system.
The Act recognizes that “the term ‘waters of the United States’ means all waters of the United States… including wetlands adjacent to bodies of water and other wetlands and waters often referred to as isolated. ” The Act further recognizes that inconsistent State water pollution control laws are insufficient to protect the intra-state aquatic ecosystems, and that uniform water quality and aquatic ecosystem protection standards are essential.
The Bill recognizes the national objective of restoring and maintaining the chemical, physical, and biological integrity of the waters of the United States and recognizes that achieving this objective requires restoration and maintenance of the natural structures and functions of the aquatic ecosystems of the United States.
Introduction of this bill is a substantial first step toward undoing the negative effects created by the United States Supreme Court in the SWANCC* decision, which, if read broadly, can be interpreted to mean that wetlands not directly connected to federally “navigable waters” were considered “isolated” and therefore did not fall under the protection of the federal Clean Water Act. The bill was introduced by Senator Feingold and has been referred to the Committee on Environment and Public Works.To read the text of the bill, go to: http://thomas. loc. gov/cgi-bin/query/z?c107:S. 2780:
In the March/April issue of the Great Lakes Aquatic Habitat News, we reported that a large wetland had been improperly filled in Elk Rapids, a small town in northern lower Michigan. The Tip of the Mitt Watershed Council and many other concerned residents, after visiting the site, sent detailed information on the development, including the permitting history of the dredging and proposed construction, as well as historical aerial photographs showing that the wetland is connected to Lake Michigan (and therefore does not fall under the SWANCC ruling), to Michigan’s U.S. Senator Carl Levin and U.S. Congressman Bart Stupak.
Senator Levin and Congressman Stupak both contacted the Environmental Protection Agency (EPA) urging that the legality of wetland destruction be investigated and that no further dredging occur until and unless the Army Corps of Engineers issued a permit. The Michigan Department of Environmental Quality contends that the wetland in question was non-jurisdictional; thus, any fill placed in the wetland would not require a permit.
On August 7, 2002, the EPA ruled that the Elk Rapids Preserve falls within the federal jurisdiction of Section 404 of the Clean Water Act* and ordered that developers must apply for an Army Corps of Engineers’permit in order to dump dredge or fill material into the wetlands in question. “I have seen firsthand the enormity of fill and I trust that the Corps will find that the developers must either restore the wetlands or require that they create appropriate wetlands mitigation”, said Stupak after the ruling. Levin stated that the ruling “will bring consistency to the administration and protection of Michigan’s endangered wetlands. ”
Pictures of the wetland destruction may be found at the Michigan Sierra Club’s website: