Bill would turn tide on wetland protection
By John Myers
Duluth News Tribune
Published October 18, 2007
Exactly 35 years after President Nixon signed the Clean Water Act into law, a battle is raging over exactly what water the federal law should protect.
For more than three decades the federal government enforced the act not just on big federal waterways such as the Great Lakes and Mississippi River, but ponds and tributaries, too.
The law is credited with cleaning up the nation’s nastiest waters, including the Cuyahoga River in Cleveland, which once was so polluted it erupted in flames, and the Northland’s St. Louis River, which was a cesspool of industrial and municipal waste.
Not only did the federal government begin regulating waterways, but it began to pay to clean them up. And the act kept some small waters and wetland areas from being bulldozed under.
Some of those protections ended, however, after two U.S. Supreme Court decisions. The court ruled in split decisions in 2001 and 2006 that federal regulators must prove the connection to larger, “navigable’’ waters before the government can intervene to protect small waters.
The Supreme Court decisions especially affected shallow wetlands, those well upstream of big lakes and rivers, which now have little or no federal protection against filling and draining. The U.S. Environmental Protection Agency says the decisions left 20 percent of the nation’s remaining wetlands vulnerable.
Private property groups, mining companies and developers lauded the court’s actions, saying it frees landowners and local governments to do as they see fit with small waterways.
But legislation proposed by U.S. Rep. Jim Oberstar, D-Minn., and U.S. Sen. Russ Feingold, D-Wis., would turn back the court decisions. The Clean Water Restoration Act, which has 170 Republican and Democratic co-sponsors in the House, restores what Oberstar says was the original intent of the 1972 act, namely to protect almost all waters in the U.S., not just navigable waters.
Oberstar called the court’s rulings a “shameless’’ effort to legislate from the bench as well as a misinterpretation of the law Nixon signed and which Oberstar helped draft as a Congressional aide.
Many scientists and conservation groups say that protecting small waters, even those seemingly disconnected from larger water bodies, is critical to protect against erosion, filter pollution, buffer against floods and provide critical fish and wildlife habitat.
“The science on this is clear. But in recent years, we’ve seen a disconnect between the science and the law on this issue,’’ Judy Meyer, a University of Georgia research scientist, said in July during House hearings on the Oberstar bill. “These really are not isolated waters but are indeed hydrologically, chemically and biologically connected and are integral to downstream waters.’’
The bill is opposed by the nation’s largest farm industry groups, along with developers, paper industry and mining organizations, anti-tax groups and conservative think tanks that say the legislation would expand the reach of federal regulation.
Some northern Minnesota property rights advocates and county commissioners say the Supreme Court got it right, and that efforts to restore protections to small waters will erode the rights of private property owners.
The latest opposition comes from the little-known Northern Counties Land Use Coordinating Board and the Twin Cities-based American Property Coalition that is run by Linda Runbeck, a former Minnesota state senator and the campaign manager for Rod Grams in his unsuccessful 2006 bid to unseat Oberstar.
Runbeck and Don Parmeter, director of the coalition, spoke against the bill last month at two public hearings held by the Northern Counties Land Use Coordinating Board in Thief River Falls, Minn., and International Falls.
Parmeter calls the bill “arguably the biggest federal power grab in the nation’s history.”
“The bill is a wolf in sheep’s clothing. Oberstar is using the popular political appeal of clean water and the Federal Water Pollution Control Act of 1972 to expand federal jurisdiction over land and water. The bill replaces the term ‘navigable’ with ‘waters of the U.S.’ which includes wetlands, sloughs, meadows, prairie potholes, playa lakes, ponds, mudflats, sandflats and intermittent streams,’’ Parmeter said. “This is not a restoration bill. It is an expansion bill that infringes on the constitutional rights of citizens and state and local governments.’’
The debate has caused some strange rifts. Marcus Hall, director of public works for St. Louis County, testified in Washington in July that the Oberstar bill is needed to clear up confusion among regulators and allow stalled projects to move forward. But St. Louis County Commissioner Dennis Fink strongly opposes the bill.
More than 300 organizations — representing hunters, family farmers, conservation groups, natural resource agencies, environmentalists and others — are on record in support of the Oberstar bill.
“Without the act’s protection for all important wetlands, waterfowl in the most vital wetlands in North America are imperiled,’’ Alan Wentz, Ducks Unlimited conservation and communications manager, said in a statement Tuesday. “Ducks are at risk, and the future of duck hunting is at risk.’’
Oberstar, chairman of House Transportation and Infrastructure Committee, said he expects to move the bill from committee to the House floor in coming weeks. Feingold said he expects to move his bill later this year.
JOHN MYERS can be reached at (218) 723-5344 or (800) 456-8282, or by e-mail at jmyers@