Saturday, January 28th, 2023
Saturday, January 28th, 2023

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Concern raised over Clean Water Act interpretation

By Tim Spielman

Associate Editor

Washington – Field offices of the EPA and the Army Corps of
Engineers earlier this month were issued ‘joint guidance’ regarding
interpretation of the federal Clean Water Act, specifically, what
constitutes a wetland.

While federal officials say the guidance will reduce confusion
and protect wetlands, some environmental groups believe it will do
quite the opposite, on both points.

‘(The guidance) doesn’t fix a thing and makes the status of
protections even worse for streams and wetlands,’ said Jan
Goldman-Carter, an attorney for the National Wildlife Federation,
in a press statement.

Meanwhile, a press release from the EPA states: ‘This action
reinforces the Bush administration’s commitment to protect and
enhance the quality of our nation’s wetlands and water bodies.’

Language to guide agency officials in wetland determinations was
needed largely in part because of Supreme Court decisions last
year, according to Benjamin Grumbles, assistant EPA

Grumbles said the new guidance conforms with a ruling by the
Supreme Court a year ago in two Michigan cases involving landowners
John Rapanos, of Midland, and Keith Carabell, of Macomb County.
Both had been fighting regulators since the 1980s over proposed
construction projects in wetland areas.

On a 5-4 vote, the justices overturned previous rulings against
Rapanos and Carabell, returning their cases to lower courts for
further review.

A divided court said that while the government can block
development in a wetland, even miles from a traditional waterway,
it can do so only if there is a significant connection shown with
the waterway.

While the ruling fell short of what some property rights
advocates wanted in limiting the law’s reach, it said – in the
words of Justice Anthony Kennedy – that there must be a
‘significant nexus’ shown between the wetland and a navigable

The EPA guidelines meet that test, said Grumbles, requiring an
analysis on a case-by-case basis of water flow and hydrological and
ecological factors that would determine the relationship of the
tributary to navigable waters downstream.

Particularly vulnerable – and of specific interest to hunters –
are the prairie potholes of the Dakotas, said Jim Murphy, an
attorney with the National Wildlife Foundation in Vermont.

‘The potholes are a huge concern,’ he said, noting that states
like Minnesota and Wisconsin have strong state laws that protect
wetlands, unlike the Dakotas. North and South Dakota, he said, have
‘virtually nothing’ in terms of wetland protection laws.

‘The guidance effectively writes these (Prairie Pothole Region)
resources off,’ he said.

Don Young, executive vice president for Ducks Unlimited, echoed
concern for the Prairie Pothole Region, where, beyond the Clean
Water Act, the best friend of wetlands is the Farm Bill’s
‘Swampbuster’ provision.

‘The guidance issued (June 5) in response to the 2006 Supreme
Court decision provides some clarity with respect to protection of
a small subset of wetlands, but it excludes protection for tens of
millions of acres geographically isolated wetlands,’ Young

‘These wetlands, typified by the prairie potholes, are the
lifeblood of the breeding grounds and are the most important
wetlands to waterfowl Š,’ he said.

Thus, according to DU, the NWF, and other conservation groups,
passage of federal legislation to protect wetlands is vital. A bill
now offered by Michigan’s John Dingell and Minnesota’s Jim Oberstar
– the Clean Water Restoration act – would do that, they say.

‘ Š this guidance Š proves once and for all that Congress should
pass the Clean Water Restoration Act to clarify that it was
intended that all waters of the United States be covered by the
law,’ Dingell said in a press release.

Dingell, one of the authors of the original 1972 legislation,
said 59 percent of all streams and rivers, and their neighboring
wetlands, are intermittent or ephemeral.

Scott Yaich, DU director of conservation operations in Memphis,
said opponents of the federal bill have been ‘distorting what the
bill means.’ Yaich said the exemptions for farming, mining,
forestry, and other practices contained in the current bill, remain
in the Clean Water Restoration Act.

‘What the act is intended to do is merely return to the 2001,
pre-SWANCC decision (the Supreme Court decision regarding the Solid
Waste Agency of Northern Cook County, Ill.),’ Yaich said.

Federal officials say the guidance is in line with the Supreme
Court rulings, and will ‘ensure America’s wetlands and other water
bodies are protected under the Clean Water Act.’

The AP contributed to this report.

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