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Great Lakes Article:

Editorial: Wetlands / A misguided retreat on protections
Minneapolis Star Tribune
01/21/2003

The Bush administration's new policy on wetlands protection is a needless, misguided retreat from sensible land and water management nationwide. It also raises a special problem for Minnesota, which wrote its own laws with federal protections assumed.

Although the realization came far too late, Americans generally understand the prices we've paid for dredging and filling so many ponds, marshes and streams. Flooding has accelerated, water quality has declined, wildlife habitat has disappeared.

Under the first President Bush, it was decided that henceforth there should be "no net loss" of wetlands -- in effect, that whatever acreage was drained or filled must be replaced with an equivalent area nearby. There have been problems assuring the adequacy of the replacement efforts, but the central objective remains critically important and widely supported.

There is little chance, for example, that Congress would take back the portions of the Clean Water Act that treat dredging and filling of wetlands as pollution, and therefore subject to strict environmental review. But the Supreme Court created another avenue for rollback in a 2001 decision regarding an Illinois landfill.

Authority for federal water and wetland regulation is restricted to "navigable" bodies of water, a term whose definition has been refined by decades of litigation (and no longer has much to do with boats). In the Illinois case, the Army Corps of Engineers claimed that an isolated pond could be considered part of the nation's navigable waterways because it was used by migrating waterfowl. The justices said that was stretching the point too far -- but declined to say what the acceptable outer boundaries of "navigable waters" might be.

Now the Environmental Protection Agency has proposed to make new rules defining those boundaries. It has also signaled its leanings by temporarily adopting a rule that excludes any isolated wetland or body of water -- that is, one that has no surface connection to larger waterways. At a stroke, this ends protection of at least 20 to 30 percent of wetlands previously covered by the Clean Water Act. It also ignores important interconnections created by subsurface flows.

These exclusions would have special environmental significance in the Great Lakes region, spattered as it is with ponds, marshes and bogs. And they will have a particular impact on Minnesota, whose laws exclude large classes of isolated wetlands for which federal protection was assumed.

It's important to note that nothing in the Supreme Court's ruling required EPA to take this action. Indeed, the court's decision was notably lacking in specific guidance, other than rejecting the old migratory-bird principle.

No, this is a wholly voluntary effort on the Bush administration's part to seize and exploit an opportunity for rolling back needed environmental programs -- and to do it through agency rulemaking, rather than congressional lawmaking.

Minnesotans ought to oppose this step backward -- and prepare, in the meantime, to pick up a regulatory burden the White House seems determined to shed.

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