OVERSIGHT HEARING ON THE REGULATORY AND LEGAL STATUS OF FEDERAL JURISDICTION OF NAVIGABLE WATERS UNDER THE CLEAN WATER ACT
SUBCOMMITTEE ON FISHERIES, WILDLIFE AND WATER
SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
P. SCOTT HASSETT, SECRETARY
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
JUNE 10, 2003
Thank you for the opportunity to present the following comments on the need to protect the nation’s so-called “isolated” wetlands and their benefits for people and wildlife across America.
Wisconsin has a well-founded reputation and tradition of environmental protection and has strongly supported the Clean Water Act. We believe that the Clean Water Act and its section 404 program complements our state program and provides comprehensive protection of Wisconsin’s valuable water resources.
When the Supreme Court restricted protection of isolated waters in its 2001 decision, Solid Waste Agency of Northern Cook County v. U. S. Army Corps of Engineers, Wisconsin found itself without the authority to regulate “isolated” wetlands. We were not alone – along with 35 other states we did not have stand-alone wetland regulations that would automatically fill the gap in the loss of federal jurisdiction. Rather, our wetland program piggybacked on federal jurisdiction and wetland protection depended on the Corps’ regulatory jurisdiction under the Clean Water Act.
Nearly 30 percent of Wisconsin’s wetlands (over 1 million acres) are “isolated” and suddenly lost regulatory protection. Wetlands determined to be no longer protected by the federal government included some of the state’s most sensitive wetlands-prairie potholes, glacial kettles, coastal swales, bogs, calcareous fens and other basin wetlands. These are wetlands that the public often don’t recognize as wetlands, yet they provide crucial functions, especially as critical habitat for Wisconsin plants, fish and wildlife. Of Wisconsin’s 370 species of birds, 39 percent live in or use wetlands. Many important game birds, mammals and fish are associated with wetlands, among them waterfowl, white-tailed deer, ring-necked pheasants, northern pike and walleye. Fully one-third of the plants and animals on Wisconsin’s state endangered and threatened list depend on wetlands. The proportion is even higher (43 percent) for plant and animal species in Wisconsin that are on the federal endangered and threatened species list. Wisconsin wetlands protect water quality by filtering out polluted runoff, prevent flooding by storing water and provide recreation for boaters, hunters, canoeists, wildlife watchers and others. In addition, Wisconsin wetlands are intimately associated with other major community types in the state – lakes, rivers, prairies, forests - and they play a critical role in maintaining the overall health and functioning of these communities. Similar impacts have reported by most states and in numerous reports and studies since the SWANCC decision.
Legislative response was swift in Wisconsin. Then Governor Scott McCallum issued a strong statement that the Supreme Court ruling, “will not result in a retreat from our long-standing commitment to protect Wisconsin wetlands”. Almost four months to the day after the Supreme Court decision, the Wisconsin legislature unanimously passed legislation giving the Department of Natural Resources the authority to protect isolated waters.
While Wisconsin has taken action to protect its own wetlands, we remain concerned about the fate of isolated wetlands in other states A large percentage of Wisconsin’s wildlife migrates and spends some portion of their life in other states and countries. If the wetlands are lost along migration routes on wintering or summering grounds, Wisconsin will suffer enormously. The recent reintroduction of whooping cranes to Wisconsin is a prime example – not only do the birds winter and summer in isolated wetlands, they use isolated exclusively as stopovers in their migration to and from their wintering grounds.
Wisconsin believes that the nation’s isolated wetlands are extremely critical to the nation’s environmental health and must be protected. While state protection of wetlands is very important, national action is needed to restore protection to the nation’s “isolated” waters. The move from federal to state control over isolated wetlands has proven to extremely difficult for most states (only two other states have successfully passed legislation or rules). Inaction (or reliance on state action) will guarantee irreversible loss of precious water resources and the benefits they provide to this nation.
This concern is shared by other states. Over 60 state agencies from 40 states responded to the recent Advance Notice of Proposed Rulemaking on the Definition of Waters of the U.S. By an overwhelming majority states supported maintaining the pre-SWANCC definition of Waters of the U.S. and opposed rulemaking that would make significant changes. Many of the states documented significant threats to isolated as well as other waters in the state that could result from changes in CWA jurisdiction. States support stronger state participation in protecting and managing the Nation's waters, but these need to be achieved by sharing responsibilities and strengthening partnerships, not through an abdication of federal responsibility for these important resources.
In summary, Wisconsin strongly believes that national legislation is needed to return protection to the nation’s so-called “isolated” wetlands and the benefits they supply to this nation. We urge you to support and take quick action on the Clean Water Authority Restoration Act introduced by Senator Feingold and Representatives Oberstar and Dingell.