DU, Delta criticize wetlands proposal

Associate Editor

St. Paul A Bush administration proposal regarding wetlands
protection has some conservation groups fearing the worst that
temporary ponds, used extensively by ducks and other water birds,
could be drained and used for other purposes.

The proposal, the result of a Supreme Court decision in Illinois
two years ago, was reported recently by the Los Angeles Times
newspaper. The proposal would exclude wetlands that have no surface
connection to streams, as well as streams that flow for less than
half the year, on average, the report said.

“We could expect the waterfowl populations in the Dakotas and
Montana to be about 50 percent of what they currently are,” said
Rick Warhurst, a biologist with Ducks Unlimited in Bismarck, N.D.
“That’s the worst-case scenario.”

It was in 2001 that the Supreme Court overturned a U.S. Army
Corps of Engineers’ decision to deny a permit request from the
Solid Waste Agency of Northern Cook County (SWANCC) to fill in
seasonal and permanent ponds used by migratory birds.

Since that time, some states, at the urging of conservation
groups and agencies, have enacted legislation protecting

Minnesota had additional wetland protections prior to the SWANCC
decision, according to Ron Harnack, executive director of the
state’s Board of Water and Soil Resources.

“We have a pretty good Wetlands Conservation Act in place,
though there are some gaps,” Harnack said.

Minnesota’s wetlands are divided into eight types. Types 1
(seasonally flooded basins) and 2 (wet meadows) could “slip through
the cracks” if they’re not covered by federal “swampbuster” laws,
which require agricultural producers to protect wetlands on farms
they operate in order to be eligible for USDA farm program

Critics fear the proposed federal change would eliminate
swampbuster protection and incentive payments. But Mike Held, of
the South Dakota Farm Bureau in Huron, S.D., said the changes would
help farmers.

“We think the federal bureaucracy has far overstepped any
intentions Congress had in the 1972 Clean Water Act,” he said.
“It’s caused more regulation than would be necessary on

Harnack said although there’s some concern about more drainage
tile on Minnesota ag lands, much that’s now being installed is
intended to improve yields on ag land already under production.

He said it’s important for individual states to have their own
wetlands protection laws.

“Where states have strong state programs, sometimes they
duplicate federal laws, but when there are changes in
interpretation of federal rules, it’s nice to have the state laws,”
Harnack said.

In a letter addressing the “Advance Notice of Proposed
Rulemaking (ANPR) on the Clean Water Act Regulatory Definition of
Waters of the United States,’ ” the state BWSR says “post-SWANCC
regulatory scenarios (reveal) that the extent of federal Clean
Water Act regulation could be significantly reduced in areas of
Minnesota that can least afford to lose more of their wetlands

“We recommend that the Corps and (federal Environmental
Protection Agency) revise the federal regulations to reflect a
reading of the SWANCC decision that is limited to Section 404 (a
section of the Clean Water Act that requires a Corps permit for
dredging or filling of wetlands) and acknowledges the unusual
aspects of the site that generated the case law.”

Alan Wentz, DU’s senior group manager for conservation, said the
EPA received over 130,000 comments regarding the ANPR. The EPA is
the lead agency for rulemaking, if in fact a new rule is

“We’ve said, no new rule is necessary,” Wentz said. “The current
language should protect isolated water bodies.”

The draft proposal to exclude seasonal and temporary wetlands
also drew the ire of Delta Waterfowl.

“This is the most serious threat to ducks and duck hunters in a
long time,” said Rob Olson, director of U.S. operations for Delta
in an organization news release. “The administration’s draft
proposal would strip seasonal and temporary wetlands of protection
under the Clean Water Act, and that would be devastating for duck
production. Every year would be like a drought on the prairies, and
no one has to tell duck hunters what happens when we have a

Olson said the rulemaking process doesn’t require Congressional
approval, but that sportsmen should contact their U.S.
representatives and senators, because “if enough sportsmen make
their feelings known, lawmakers will deliver the message to the
White House.”

The Associated Press contributed to this report.

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