Sunday, January 29th, 2023
Sunday, January 29th, 2023

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Federal guidance’ may still threaten wetlands

Associate Editor

St. Paul Conservation groups applauded recent action by the Bush
administration when it abandoned a plan that would’ve reduced
wetlands protection afforded by the federal Clean Water Act.

But while Bush has dropped a formal rule-making process,
“guidance” issued by the administration in January of last year
continues to threaten wetlands in Minnesota and elsewhere,
environmental advocates say.

“While Bush publicly states his support for no net loss of
wetlands in America,’ out of the scrutiny of the public eye his
administration continues to remove Clean Water Act protections for
potentially 20 million acres of wetlands and tens of thousands of
stream miles nationwide, through a directive to agency staff issued
in January this year,” environmental attorney Jan Goldman-Carter
wrote in a recent letter to Outdoor News. Wetland alteration can
occur because of anything from roadway to residential

Goldman-Carter, also on the board of directors for the Minnesota
Center for Environmental Advocacy, says the Bush directive serves
to discourage the U.S. Army Corps of Engineers from asserting
jurisdiction in some cases. The action is fallout from a 2001
Supreme Court case, which stated CWA protection could not be given
a wetland if only to provide habitat for migratory birds.

The directive makes several points, including: ” field staff
should not assert CWA jurisdiction over isolated waters that are
both intrastate and non-navigable, where the sole basis available
for asserting CWA jurisdiction rests on any of the factors listed
in the migratory bird rule.’ “

Further, in some questionable cases, Corps of Engineers field
staff were directed to get Headquarters approval prior to asserting
jurisdiction over some isolated, non-navigable waters.

Goldman-Carter said she’s reviewed actions by the Corps of
Engineers St. Paul district office. She says it’s apparent the
office assumed greater jurisdiction before the Supreme Court
decision was handed down in 2001, but whether or not Corps action
changed more following that decision or Bush’s directive last
January is difficult to determine.

The directive was issued the same time the Bush administration
announced its intention to clarify the federal government’s rules
used to protect wetlands under the CWA.

“Today’s announcement is important because the Corps of
Engineers regulatory officers and the unregulated community now
have guidance which more clearly describes the scope of
jurisdiction for which permits are required,” a Corps spokesperson
said in a news release a year ago.

Bush’s withdrawal of the proposal for wetlands rule changes came
at the urging of more than 200 members of the U.S. Congress,
including Sen. Mark Dayton, along with U.S. Reps. Jim Ramstad,
Betty McCollum, Martin Sabo, and Jim Oberstar.

Whether Corps of Engineers’ jurisdiction over wetlands is fully
restored is a matter for Congress and the courts, Goldman-Carter

Currently, Congress is considering a bill that would “totally
change the picture,” she said. It would reverse not only the Court
decision (known as SWANCC Solid Waste Agency of Northern Cook
County, Ill.), it would reverse the administration’s directive.

However, SWANCC was a split Supreme Court decision. Similar
cases in U.S. appeals courts could eventually make their way to the
top. Could the tide turn at the Supreme Court level? Goldman-Carter
says it’s possible.

“We’re trying to get state (agencies) to provide briefs arguing
that this (wetland exclusions) is not a good idea,” she said.

Already, the DNR and Board of Water and Soil Resources have
weighed in with their support for broad interpretation the CWA.

In a letter to the EPA, the state DNR writes, “We do not believe
the term isolated waters’ can be defined in a practical manner for
waters in Minnesota. In a purely hydrological sense, very few, if
any, waters are truly isolated. Surface connectivity is dynamic.
Water bodies lacking distinct surface water connections often
interact with groundwater.”

Goldman-Carter said given the current directive for the Corps of
Engineers, Minnesota’s wetlands are “in pretty good shape.”

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