Wisconsin Law Closes Gap in Wetlands Protection

By Cat Lazaroff

MADISON, Wisconsin, May 9, 2001 (ENS) - Wisconsin Governor Scott McCallum has signed the nation's first state law designed to protect wetlands from the effects of a recent Supreme Court ruling that left some categories of wetlands largely unprotected. The Wisconsin law is expected to become a template for other states' efforts to step up wetlands preservation.

Five months after a U.S. Supreme Court ruling removed federal protection from small, isolated wetlands across the country, Wisconsin has become the first state to pass a law giving the state authority to protect such wetlands from filling and dredging.

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Wetlands that are isolated from navigable waterways, like this Wisconsin bog, lost federal protection under a Supreme Court decision in January (All photos courtesy Wisconsin Wetlands Association, except where noted)
The law, which became effective just after midnight on Tuesday, covers at least one million acres of wetlands, among them sedge meadows, shallow marshes and seasonal wetlands that are among some of the state's most productive in providing waterfowl and amphibian habitat, storing flood waters, and helping protect water quality.

The law will not impose any new regulations on landowners but allows the state to continue following the same process that was used for the past decade to decide whether a project that potentially affects wetlands can proceed.

"This is a historic event for Wisconsin," says Department of Natural Resources (DNR) secretary Darrell Bazzell. "We're the first state to step forward to replace the lost authority and we did it in a bipartisan way and a way that's protective of the resource."

The Wisconsin Senate and Assembly both passed the bill unanimously last week, and Governor Scott McCallum signed the bill Monday in a ceremony at the Capitol. Bazzell and other DNR officials attended the ceremony, along with lawmakers who were key in crafting and passing the compromise bill, wetland ecologists who worked on behalf of restoring wetland protections, and the conservation and environmental group leaders who worked to get the bill passed.

Governor McCallum praised Senator Jim Baumgart, the co-chair of the Senate Natural Resources Committee, and Representative Neal Kedzie, his counterpart in the Assembly, for coming together to protect valuable natural resources before the spring construction season began in earnest and accelerated wetland losses.

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Governor Scott McCallum, a Republican, called a special legislative session to review the wetlands bill (Photo courtesy Office of the Governor)
"I am pleased that lawmakers were able to put their differences aside to pass this very important bill," Governor McCallum said. "This is proof that all sides can work together to do something great for Wisconsin."

McCallum worked closely with state lawmakers to develop consensus legislation on wetlands protection. Once the bill was finalized, the governor called the state legislature into special session to address the measure.

"We're already getting inquiries from a number of other states, wanting to know how we were able to reach consensus in Wisconsin," McCallum added.

Since the January 9 Supreme Court ruling, the Corps has informed 37 Wisconsin applicants that it had no jurisdiction over wetlands the applicants' projects affected. A handful of applicants had already filled or excavated the wetlands by May 1.

Those applicants who had been notified that the Corps did not have jurisdiction over their wetlands but who had not yet filled or dredged their wetland must now await approval from DNR and/or any other applicable local government before beginning any filling or dredging.

The Supreme Court ruling that placed Wisconsin's isolated wetlands in limbo for the past five months involved an abandoned gravel and sand operation in Illinois being used by migratory waterfowl. The Corps, which has authority under the Clean Water Act over navigable, interstate U.S. waters, asserted it could regulate the wetland because the wetland served migratory waterfowl that crossed state lines.

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Marshlands are only protected if they are connected to navigable rivers, the Supreme Court ruled
The Court ruled that the Corps had no authority over such isolated, nonnavigable wetlands under the Clean Water Act. By narrowing the corps' jurisdiction under the Clean Water Act, the court in essence narrowed DNR's ability to protect isolated wetlands because the state's authority was tied to Corps jurisdiction.

Wisconsin's law now gives DNR authority to protect isolated wetlands in Wisconsin that the Corps determines it has no jurisdiction over as a result of the Supreme Court's ruling. No person can fill or dredge in such a wetland unless the state certifies that the project meets Wisconsin's water quality standards for wetlands.

Meeting those standards for wetlands - the first such standards established in the country - will require:

Such water quality standards for wetlands, which have been in place since 1991, have helped DNR cut wetland acreage lost to permitted filling or dredging from an average of 1,440 acres in 1991 to an average of about 350 today. At the same time, 86 percent of applicants have gotten the permits they need to pursue the projects they wanted, sometimes with modifications to avoid or minimize harm to the environment.

Mary Ellen Vollbrecht, chief of the DNR's rivers and habitat program, said that owners of small isolated wetlands will not notice much difference as a result of the new law.

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A yellow headed blackbird, one of the migratory birds that visits isolated wetlands in Wisconsin
"They were regulated before the court decision, and they'll be regulated again and follow the same process as before," said Vollbrecht.

Under that process, people who want to pursue a project that could potentially affect a wetland should call DNR when they have a concept or sketch for their project. Then, if the DNR water management specialist says its necessary, the people should submit a wetland application with either DNR or the Corps.

Those agencies will share the application and determine which one of the agencies - or a local government - has jurisdiction and needs to take the lead.

"We don't expect most applicants to figure out which jurisdiction they're under - DNR or the corps," Vollbrecht said. "We consider it our responsibility to make sure the correct authority makes the decision for the areas they regulate. The key is all cases is trying to avoid having an adverse impact on wetlands."

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An arethusa orchid growing in a Wisconsin swamp (Photo by Elizabeth Zimmerman, Wisconsin Wetlands Association)
The DNR will have 30 days to decide whether a wetlands permit application is complete, and 120 days to approve or deny the permit. The new law also gives DNR the authority to enter private property to investigate possible wetland violations, and calls for a Legislative Council study of Wisconsin wetland regulations.

State Representative Neal Kedzie, who coauthored the bill, said other states are likely to watch Wisconsin's new bill closely as they decide on their own measures to protect isolated wetlands in light of the Supreme Court decision.

"We have established what I believe will be called the Wisconsin model for how we deal with wetlands and wetlands protections for the future," said Kedzie.