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

The SWANCC Decision and 2001 WI Act 6 NGA State Wetland’s Workshop October 21, 2002 Michael Cain Staff Attorney- WI DNR. SWANCC Decision. U.S. Supreme Court decided in Jan., 2001

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

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  1. The SWANCC Decision and 2001 WI Act 6NGA State Wetland’s WorkshopOctober 21, 2002Michael CainStaff Attorney- WI DNR

  2. 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

  3. 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

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

  5. 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

  6. 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

  7. 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.

  8. Many agricultural and development interests originally opposed the legislation

  9. 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

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

  11. 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

  12. 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

  13. Enforcement Options • Federal wetlands- COE/EPA lead. DNR can enforce post May,2000 (s. 281.17) • Non-federal- DNR enforces under Act 6, s. 281.36, post May 2001

  14. We can protect isolated wetlands in WI!

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

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

  17. “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

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