By: Jan Goldman-Carter
Minnesota has its own state wetlands law independent of its Clean Water Act (CWA) 401 certification authority.
Ostensibly, Minnesota’s Wetlands Conservation Act (WCA) regulates the full range of wetlands in the state, including
“isolated” wetlands. However, WCA and its regulations exempt a number of activities that often occur in so-called
“isolated” wetlands. These exemptions were put in place at least in part because the U.S. Army Corps of Engineers (Corps) was requiring a CWA § 404 permit for these activities in wetlands, including “isolated” wetlands. After the January 2001 U. S. Supreme Court decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers decision, the Corps is no longer regulating these activities in “isolated” wetlands, and Minnesota cannot, leaving a gap in regulation of so-called “isolated” wetlands.
Minnesota’s Board of Soil and Water Resources (BWSR), which administers WCA, has conducted its own analysis of post-SWANCC regulatory gaps and concluded that absent federal CWA jurisdiction, many of Minnesota’s small,
seasonal wetlands will be left unregulated, particularly in the Prairie Pothole Region and other regions of the state with the greatest historical wetland losses. These wetland losses willbe even more pronounced if intermittent streams and their adjacent wetlands are assumed to no longer qualify as waters of the United States. In 2001, BWSR presented an informal proposal to modify its exemptions and close this regulatory gap. The proposal was tabled in light of resistance from regulated interests.
In addition to WCA’s exemptions,WCA program effectiveness is limited by political and resource constraints. First,WCA is administered by local government units with state agency oversight. Many of these local governmental units lack the staff expertise and resources to conduct careful permit review and impose sufficiently protective permit conditions. Second, the state’s budget crisis has severely cut funding for wetland and stream permitting programs at both the state and the local level. Governing Magazine (May 2002).
Gov. Tim Pawlenty has been vocal about his support for protecting wetlands. In April of 2003, at the governor’s
request, Minnesota’s three agencies with the most direct jurisdiction over wetlands (BWSR, Department of Natural
Resources, Pollution Control Agency) submitted 13 pages of comments on the proposed rule making on the Clean Water Act Regulatory Definition of “Waters of the United States.” Docket ID No. OW-2002-0050; 68 FR 1991-1997. The comments in general ask that the federal government not abandon the protection of isolated wetlands, and that
federal rules acknowledge the specific, limited reach of the Supreme Court’s SWANCC decision.