State rules will continue to protect isolated wetlands
MADISON – Recent federal announcements related to isolated wetlands will have limited impact in Wisconsin, state officials say, because a 2001 Wisconsin law authorizes the state to step in to protect isolated wetlands that federal officials determine they have no jurisdiction to protect from being filled in or dredged. Wisconsin has an estimated 1 million acres of isolated wetlands, which are wetlands not connected to waterways.
"The impact on Wisconsin wetlands should be limited because of a strong bipartisan effort in 2001 to get legislation in place to protect our waterways and wetlands," says Scott Hausmann, who leads the Department of Natural Resources wetland team.
"The actions announced January 10 confirm that DNR, key lawmakers and citizens were on target in pursuing legislation to return state protection to isolated wetlands left hanging in limbo by the Supreme Court decision."
The issue traces to a January 2001 decision by the U.S. Supreme Court in an Illinois case, the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, which is often referred to as the SWANCC decision. The high court ruled that the Clean Water Act did not protect isolated ponds and wetlands based solely on their value as habitat for migratory waterfowl and songbirds. People pursuing projects affecting isolated wetlands would not be required to seek the federal wetland permits necessary to proceed with their projects.
That 2001 ruling left unclear whether federal field agents could protect the same wetlands and ponds for other reasons, such as fishing, or recreation. The result has been confusion among state and federal officials over which wetlands were covered under the Clean Water Act, and concern about the fate of isolated wetlands.
Wisconsin responded to the Supreme Court ruling in May 2001, four months later, by becoming the first -- and so far only state – to pass legislation allowing the state to step in when federal field agents determined they had no federal jurisdiction over wetlands. The Wisconsin law says that any wetland or waterway that is not under federal jurisdiction for any reason as a result of the SWANCC decision requires a project review and approval by state wetland officials.
That state law should limit the impact on Wisconsin wetlands of the recent federal announcements. EPA announced it would review the Clean Water Act to consider whether the 2001 Supreme Court decision required any other changes in how isolated wetlands receive protection in addition to eliminating habitat for migratory birds as a reason for protection. That agency will be publishing a notice of its intent to create rules, opening a 45-day public comment period to solicit data and information on what should be the extent of the Clean Water Act in light of the SWANCC decision, according to EPA press releases.
In the meantime, EPA and the U. S. Army Corps of Engineers instructed their field staff to continue to extend jurisdiction to those wetlands that lie next to navigable rivers, streams and their tributaries but not to assert jurisdiction over non-navigable wetlands contained solely in one state based on the factors listed in the "Migratory Bird Rule." Field staff also were told to send to Washington, D.C. for resolution any cases involving isolated wetlands contained solely within one state involving any interstate commerce factors listed in the Clean Water Act.
Hausmann and other state wetland leaders are concerned about what the two announcements could potentially mean for other states’ wetlands, and for the natural resources they share with Wisconsin, including migratory songbirds, waterfowl, and some fish. "A large percentage of the birds we see in Wisconsin migrate and spend some portion of their life in other states and countries," he says.
Wisconsin will actively monitor how Corps and EPA field staff implement the instructions in Wisconsin and surrounding states with an eye on the potential impact on natural resources the states share with Wisconsin, Hausmann says. DNR also will participate in the proposed federal rule making process and will submit data and comments to the federal government on the potential effect on isolated wetlands.
In Wisconsin, up to one-fifth, or an estimated 1 million acres, of the state’s remaining 5.3 million acres are small, isolated wetlands. They are some of the most important wetlands because these areas provide critical habitat for wildlife and Wisconsin’s declining amphibian and reptile populations, store floodwaters, and intercept polluted runoff that would otherwise enter lakes, streams, and forests.
They’re particularly important in helping prevent urban flooding because they’re often some of the only places in urban areas where water can be stored and allowed to soak in, and they’re often very vulnerable.
In the four months between the Supreme Court’s decision and when the Wisconsin Legislature passed Act 6, the Corps notified 40 applicants the agency had no jurisdiction for the 244 acres of Wisconsin wetlands affected by their projects. By the May 9 passage of legislation, several projects had proceeded and nearly 100 acres of isolated wetlands were lost. Had the applicants proceeded in dredging or excavating all 244 acres, the state would have lost more acres of isolated wetlands in four months than the total wetland loss permitted in a typical year in Wisconsin.
FOR MORE INFORMATION CONTACT: Scott Hausmann (608) 266-7360 or Dave Siebert (608) 264-6048
Major pipeline changes to reduce harm to wetlands, streams
Citizens, DNR, utility work together to forge agreement
MADISON - Changes to the route and construction technique planned for a natural gas pipeline in southeastern Wisconsin will reduce by more than half the number of wetland acres affected and will avoid many sensitive lakes and streams.
The state, environmental groups, property owners, and We Energies agreed Jan. 15 to changes in the Wisconsin Gas Lateral Project after an intense, seven days of negotiations ended a standoff over the original pipeline route. The lateral project will connect We Energies’ system with the Guardian pipeline, a new 142-mile interstate pipeline being built from Joliet, Ill., to Ixonia.
The agreement will allow the Wisconsin Gas Lateral project to meet southeastern Wisconsin’s growing demand for a reliable natural gas supply on time and at the price set by the Wisconsin Public Service Commission (PSC), says Mary Ellen Vollbrecht, Department of Natural Resources rivers and habitat protection chief, and one of DNR’s key negotiators.
"We came up with a plan that avoided harm to a lot of lakes and streams and will still allow natural gas to be delivered at a reasonable cost to meet the needs of greater Milwaukee area residents," Vollbrecht says. "We hope this plan will stand – the project remains controversial and court appeals may continue – but the plan is a good one and can be a model for future transmission projects."
We Energies is required to obtain a DNR permit to conduct the dredging, grading, stream crossing and wetlands activity involved in burying the pipeline. The agreement grants the company the permit, but sets 58 conditions it must meet, including a modified route from the Guardian pipeline in Ixonia to connections in Menomonee Falls and Brookfield.
The modified route will skirt the Rock River in Jefferson County and cross it three miles east of Ixonia, then cross mostly agricultural and lightly developed land along roads where possible before paralleling the railroad right-of-way to a crossing of the Ashippun River. The pipeline bores under wetlands near the north end of North Lake as well as under the Big and Little Oconomowoc rivers. It parallels the Bug Line Recreational Trail to Sussex, and then follows railroad corridor branching north to Menomonee Falls and south to Brookfield. The north-south pipes skirt and cross the Fox River corridor.
The route originally approved by the PSC had the same starting and ending points but would have had an impact on 130 acres of wetlands, instead of 50 acres under the modified route. The original route would have harmed major wetland complexes including the area north of North Lake, a heron rookery, and sensitive streams including Mason Creek, the Ashippun, Bark and Fox rivers.
Other permit requirements contain innovative features aimed at better protecting the environment and saving taxpayers money. Such requirements can be applied to other pipeline transmission projects, where needed, to better protect the environment, Vollbrecht says.
For example, We Energies will be required to restore wetlands damaged when the pipe is buried and control invasive species for up to 10 years afterward. The utility also must post a bond to pay for any damages to natural resources that require private contractors to address.
We Energies also must submit to DNR 11 different, specific plans addressing everything from controlling erosion and invasive species to conducting mussel surveys. And the utility must pay for contractors to help DNR staff review and monitor construction.
The permit also forbids certain activities during times to protect spawning fish and endangered resources, to avoid disrupting the nesting of herons, and to minimize the amount of sediment entering the water, and any flooding, resulting from the pipeline work.
"The beauty of this plan is its specificity," Vollbrecht says. "It shows DNR and citizens exactly what’s going to be done and the company knows exactly what its obligations are."
The PSC on July 25, 2001, approved construction of the Wisconsin Gas Lateral Project and selected its route. The PSC determined that the pipeline was needed to meet the predicted growth in demand for natural gas in the state and to increase competition, and it gave the company two years to complete the pipeline and charge consumers the agreed upon rates.
We Energies approached DNR to apply for a permit for dredging, grading, stream crossing and filling wetlands to build the pipeline. DNR staff told the PSC that they might not be able to permit the proposed route because of concerns over the route’s impact on one big complex of connected wetlands.
Landowners and environmental groups challenged the permit application, and a contested case hearing was set for Jan. 6, 2003, in front of a Department of Administration administrative law judge. On that day, all parties asked the law judge to suspend the hearing and allow the interested parties to try to negotiate an agreement.
DNR, We Energies and a host of citizens, including Wisconsin Wetlands Association, the Waukesha Environmental Action League, Neighbors Standing United and concerned individual landowners, met for seven days and reached an agreement about the route, construction techniques and restoration.
"Everyone involved worked really hard to avoid and protect those resources and to restore the ones that couldn’t be avoided," Vollbrecht says. "With further advance planning by the state and the utility, we might have reduced the environmental impacts even more. We are now working with the PSC, training our own staff, and working with utilities on a system to select and design projects that fully deliver both energy and natural resource protection."
FOR MORE INFORMATION CONTACT: Mary Ellen Vollbrecht (608) 264-8554; Bob Wakeman (414) 262-574-2149; Mike Cain (608) 266-2177