Narrow Interpretation Could Declaw Wetlands Ruling

By Cat Lazaroff

MADISON, Wisconsin, January 24, 2001 (ENS) Lawyers for the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have issued a narrow interpretation of the scope of a Supreme Court decision that could threaten wetlands nationwide. But even the narrow interpretation leaves millions of wetland acres at risk, experts say.

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Wetlands that are isolated from navigable waterways, like this Wisconsin bog, lost federal protection under the Supreme Court decision (All photos courtesy Wisconsin Wetlands Association)
On January 9, the U.S. Supreme Court ruled that the U.S. Army Corps of Engineers had exceeded its statutory authority by asserting it had jurisdiction, under the Clean Water Act, over ponds used by migratory birds in an Illinois case. The ruling left isolated wetlands without federal protection in many cases.

Because state wetland protection rules are often based on Army Corps of Engineers authority to act under the federal Clean Water Act, state officials worry that taken broadly, the court decision could cost them their ability to protect millions of acres of wetlands.

In a legal opinion issued late Friday, top lawyers for the Corps and the EPA took a fairly narrow interpretation of the scope of the court's decision. They limited the ruling's scope to "isolated" wetlands with no connection to any lake, stream or other water considered to be navigable water of the United States.

While they said the ruling means the Corps could no longer assume jurisdiction over such a wetland solely if the waterbodies provided habitat for migrating waterfowl, the lawyers left open the door that the Corps may assume jurisdiction if it is shown that a waterbody could be used for interstate commerce such as hunting, fishing or bird watching.

"Under this opinion, substantial wetland resources will still be left without state or federal regulation of activities that seek to fill the wetlands, but we're encouraged by this initial reading from the Corps and EPA of the U.S. Supreme Court's decision," said George Meyer, secretary of the Wisconsin Department of Natural Resources (DNR). "We're cautiously optimistic that this initial interpretation of the court's decision will hold. While it narrows the breadth of the decision, it appears that millions of Wisconsin wetland acres are still at risk. We will know the precise acreage only after Corps biologists apply their new guidance."

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A yellow headed blackbird, one of the migratory birds that visits isolated wetlands in Wisconsin
Wisconsin has 5.3 million acres left of the 10 million acres present before statehood.

Even with this opinion, Meyer said, "unless we get legislation to assure that Wisconsin can apply its water quality standards, we'll lose valuable wetlands and the benefits they provide such as waterfowl, fish and amphibian habitat, flood storage, water quality protection and recreation."

In fact, Wisconsin DNR lawyers have already been receiving calls from people who want to know whether they can go ahead with projects to fill wetlands including some projects that had been denied in the past.

"We are already beginning to see the fallout from this decision," Meyer said.

The U.S Supreme Court case involved a group of northern Illinois communities that wanted to build a solid waste facility on a 533 acre site that included an abandoned sand and gravel site containing a number of ponds used by migratory birds. The Corps originally declined jurisdiction over the Illinois project because the ponds were not considered "wetlands," but changed its stance after becoming aware that migratory birds used the ponds.

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Marshlands are only protected if they are connected to navigable rivers
The municipalities challenged the Corps' assertion of jurisdiction in the case but lower courts upheld Corps jurisdiction until the U.S. Supreme Court ruled against the federal agency.

Corps officials were unclear how the narrow interpretation issued last week would be carried out in the field.

Currently, people pursuing projects that may affect wetlands in Wisconsin apply for a wetland permit from the Corps but must receive a water quality certification from state officials for that permit to be valid. To receive such certification, applicants have to demonstrate to state officials that they tried to avoid harming wetlands with their project, and if that is not possible, must demonstrate that they have minimized the damage their project does to wetlands.

Meyer urged people to call the Corps if they are considering a project that impacts a wetland or had a project denied because it harmed wetlands.

"Do not assume you can go ahead and fill," Meyer cautioned. "Until there is clear guidance from the Corps, we urge you to call the Corps and seek a decision from them on your specific project in writing."

In many cases, developers can work with state water management specialists to find ways to complete their projects without harming wetlands, Meyer noted. In the past, such a process has allowed 86 percent of Wisconsin applicants to get the project they want with less harm to the environment.

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An arethusa orchid growing in a Wisconsin swamp (Photo by Elizabeth Zimmerman, Wisconsin Wetlands Association)
"In the overwhelming majority of cases, we can work with you to get the project you want yet protect wetlands," Meyer says. "These wetlands are invaluable they provide critical habitat for plants, fish and wildlife, they protect water quality by filtering out polluted runoff, prevent flooding by storing water, provide recreation for boaters, hunters, canoeists, wildlife watchers and others, and they provide scenic beauty."

Of Wisconsin's 370 species of birds, 39 percent live in or use wetlands. Many game species depend on wetlands, and fully one-third of the plants and animals on Wisconsin's state endangered and threatened list depend on wetlands, according to a 1995 report.