The SWANCC Decision and 2001 WI Act 6 NGA State Wetland’s Workshop October 21, 2002 Michael Cain Staff Attorney- WI DNR

NR 103, WAC- The adoption of the rule was controversial. Nearly 3,000 people participated in the rule process. The rule became effective on August 1, % supported the rule 27% opposed the rule 12% appeared “as interest may appear”

Permits covered by NR 103 include: Water Regulatory permits Solid Waste facility approvals dams approvals or permits highway projects which require approval Wetland fill projects which require Corps of Engineer’s approval WPDES permits any project which requires DNR review or funding all DNR property activities

SWANCC Decision U.S. Supreme Court decided in Jan., 2001 Held that Clean Water Act did not cover “isolated wetlands” where Migratory Bird rule was the basis for jurisdiction Had the effect of removing water quality cert protection from an estimated 1 million acres of WI wetlands

WI DNR Response Briefed the Governor and Legislative leaders Coordinated with Federal agencies to determine scope of impacts Developed public information strategies Coordinated with broad range of constituent groups Drafted proposed legislation to restore protection

The WI DNR adopted water quality standards for wetlands in 1991, which applied to all wetlands in the state.

Summary of Rule Modeled after US EPA 404 guidelines Applies to all wetlands as defined in wetland mapping law, s.23.32, Stats. Uses narrative standards rather than numerical standards Applies to all DNR regulatory, financial or land management actions

Impacts of NR 103 Pre-NR 103 approximately 1440 acres of wetland per year were lost thru COE permits After NR 103, approximately 328 acres per year lost NR 103 review process has improved planning and avoidance of wetland impacts

SWANCC affected many potholes and kettle lakes in WI, which provide important habitat for 40% of bird species and 33% of threatened and endangered species.

Many agricultural and development interests originally opposed the legislation

Ducks Unlimited and Wisconsin Wildlife Federation strongly supported the bill Recreational value of isolated wetlands- waterfowl hunting, passive recreation Economic values associated with hunting and other outdoor recreation were important factors, e.g., waterfowl hunting has an economic impact of $351 million in WI

WI Wetlands Association, Sierra Club and other wetland advocacy groups strongly supported the legislation.

Legislative Response WI Senate quickly adopted remedial legislation WI Assembly adopted an alternative version After 5 months of deliberations, a compromise bill was forged Governor McCallum called Special Session WI Act 6 adopted, effective May 8, 2001

WI Act 6 Intended to restore the WQC coverage for all WI wetlands- federal and non-federal Retained CWA exemptions (farming, etc.) 5 months of intense Legislative activity Adopted in a special session, unanimously in both house of WI Legislature We lost an estimated 47 acres of wetlands during the 5 month period

Act 6 created Section , Stats. - requires WQC after May, applies to “non-federal” wetlands -DNR must use federal exemptions and wetland delineation process

Enforcement Options Federal wetlands- COE/EPA lead. DNR can enforce post May,2000 (s ) Non-federal- DNR enforces under Act 6, s , post May 2001

Our wetland protections remain intact and are well supported!

We can protect isolated wetlands in WI!

In most other states, these wetlands are not protected under the CWA or state regulations.

What will be the long term impacts? -Concerns re: ecological and economic impacts of the loss of these wetlands

“All ethics so far evolved rest upon a single premise; that the individual is a member of a community of interdependent parts. His instincts prompt him to compete for his place in that community, but his ethics prompt him also to co- operate (perhaps in order that there may be a place to compete for).” Aldo Leopold