Wetlands / A misguided retreat on protections
Minneapolis Star Tribune
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
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
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.