Keynote Remarks of U.S. Senator Russ Feingold at the 2003 National Wetlands Awards

Thank you Bill for that very kind introduction, and I want to thank both the Environmental Law Institute and the Environmental Protection Agency for inviting me to make some keynote remarks.

In preparing for this event tonight, I reflected upon the fact that this year, 2003, is the year of water in my home state of Wisconsin, and the International Year of Freshwater. No matter who we are, where we are, and what we do, we are all dependent on water and wetlands. In Wisconsin, water culturally defines who we are. We are surrounded by the Great Lakes, the mighty Mississippi, the beautiful and wild St. Croix and Namekogan rivers, and the prairie potholes and flowages of the Northwoods, and the people of my state identify themselves by these bodies of water. Wisconsin, in fact, is nearly an island. I have often reflected that, if we successfully cut a moat between us and our Illinois neighbors, something which occurs to us Janesville natives from time to time, we would indeed be an island.

But, what I have also learned, from Wisconsinites like Scott Hausmann (House-man) and from the other honorees tonight, is that our national obligation is not to allow our cultural dependence upon water to cloud our view of wetlands, lakes, rivers and streams as isolated, or "island," resources. Instead, we must continue to emphasize the interconnectedness of water and wetland systems, in order to truly protect them. Tonight's honorees are examples of how we might go about doing just that.

I raise this issue, because the debate over the interconnected nature of wetland systems is a growing national discussion, and one where we need to be clear that we intend to protect our wetlands, rather than lose them. In the U.S. Supreme Court's January 2001 decision, Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers, a 5 to 4 majority limited the authority of Federal agencies to use the so-called migratory bird rule as the basis for asserting Clean Water Act jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other bodies of water.

This decision, which many of you know as the SWANCC decision, means that the Environmental Protection Agency and Army Corps of Engineers can no longer enforce Federal Clean Water Act protection mechanisms to protect wetlands solely on the basis that they are used as habitat for migratory birds.

In its discussion of the case, the Court went beyond the issue of the migratory bird rule and questioned whether Congress intended the Clean Water Act to provide protection for isolated ponds, streams, wetlands and other waters, as it had been interpreted to provide for most of the last 30 years. While not the legal holding of the case, the Court's discussion has resulted in a wide variety of interpretations by federal, state and local officials that jeopardize protection for wetlands, and other waters.

Within days of the SWANCC decision, constituents came to my town hall meetings asking for Congress to respond and clarify this decision immediately. With Scott's yeoman work, Wisconsin became the first state to pass legislation and assume regulatory jurisdiction over wetlands left unprotected by the Supreme Court's decision. Our state's legislation has become the model for several states, and Scott is to be commended for leading the way in that effort.

His effort was needed, because, since 2001, the confusion over the interpretation of the SWANCC decision is growing. We now face a possibility that we will redefine the term "water" under the Clean Water Act at the federal level. The wetlands program, the point source program which stops the dumping of pollution, and the non-point program governing polluted runoff all depend on this definition.

If we don't protect a category of waters from being filled under the wetlands program, we also fail to protect them from having trash or raw sewage dumped in them, or having other activities that violate the Clean Water Act conducted in them as well.

As many of you know, I feel that Congress needs to re-establish the common understanding of the Clean Water Act's jurisdiction to protect all waters of the U.S. -- the understanding that Congress held when the Act was adopted in 1972 -- as reflected in the law, legislative history, and longstanding regulations, practice, and judicial interpretations prior to the SWANCC decision. I have introduced legislation to do that.

And, I have done so in the spirit of the dedicated winners here this evening. Each of them is to be recognized for their outstanding efforts to highlight the importance of and need to protect and conserve our wetlands. They realize the importance of these areas in protecting local water quality and providing flood control. But they also know them to be harbors of natural diversity of rare plant and animal species, and places interconnected to surrounding waters and to us. They have shown me that, if guarding the beauty of these places is not enough reason for their protection, perhaps Aldo Leopold's maxim, one of our most famous Wisconsinites and conservationists, will do: "The first rule of intelligent tinkering is to save all the pieces."

Thank you for your work to protect these pieces, and to highlight their importance to all of us. I extend to all of you my deepest congratulations, and wish you all the very best in your endeavors ahead. Again, thank you very much for inviting me.