By Charlie Luthin, Wisconsin Wetlands Association
On May 8, exactly four months following the notorious Supreme Court decision that gutted protection for “isolated” wetlands across the country, Wisconsin had a new law in place that restored protection to approximately 1 million acres of the state’s vulnerable wetland resources. The May 7th signing by Governor Scott McCallum came just days after the Wisconsin Senate and Assembly unanimously passed (33-0, 94-0, respectively) a compromise bill, and the law was hastily published for instant enactment. This law is the first in the country to address the “isolated wetlands” crisis at a state level.
“Wisconsin 2001 Act 6” restores protection to our state’s isolated wetlands—those that do not have a direct connection to navigable waterways such as lakes, rivers, or streams. Protection for these wetlands was lost as a result of an unanticipated U.S. Supreme Court decision on January 9 of this year. The new law simply transfers jurisdiction of isolated wetlands directly to the State, and these wetlands must be treated as all other wetlands under our state water quality certification standards for wetlands, NR 103. The new law acknowledges federal exemptions for farming activities, establishes a time limit for issuance of water quality certification by the Department of Natural Resources (120 days), and defines a process whereby DNR employees may investigate possible wetland violations. For small (<1 acre fill) wetland projects proposed as a “public safety” measure by a local government or state or federal transportation agency, there is an expedited application process for water quality certification. However, the public has opportunity to comment and request a hearing on, and have judicial review over, all expedited applications. Unfortunately, we have created a “double standard” for wetlands in Wisconsin, one that requires a federal and state permit, the other for a state permit only.
Over the past several months, both the State Senate and Assembly presented their respective versions of wetland protection bills to “fill the gap” created by the Supreme Court decision as well as attempts to establish a moratorium on wetland filling. But the two Houses were unable to reach satisfactory compromise on language of a reasonable wetlands bill after nearly four months of often-heated discussions and debates.
The compromise language of the bill was eventually crafted by an unlikely partnership of the Wisconsin Wetlands Association and the Wisconsin Realtors Association, working with various legislators and the Governor’s staff during two intensive weeks of daily negotiations. The final language was finally hammered out on April 30th, and the Governor called for a special legislative session the following day. On May 1, the Senate passed the compromise bill.
Massive citizen involvement helped facilitate speedy resolution of this important issue. Over the past several months, a coalition of 72 national, statewide, and local organizations representing more than 320,000 members in Wisconsin, signed a letter urging legislators to pass a law that restores protection to our state’s wetlands. Among those organizations are the Sierra Club, Ducks Unlimited, Wisconsin Waterfowl Association, Wisconsin Association of Lakes, Trout Unlimited, Wisconsin Audubon Council, River Alliance of Wisconsin, 1000 Friends of Wisconsin, and many more. In March, the Wisconsin Natural Resources Board convened a special session to unanimously pass a resolution asking the Legislature to protect isolated wetlands.
“We asked the Legislature to give authority lost by the federal government over isolated wetlands to the DNR, and this is exactly what this law will do. It effectively restores protection to a million or more acres of threatened wetlands. Wetlands can no longer be legally filled without appropriate permits,” said Alice Thompson, Chair of Wisconsin Wetlands Association. Thompson continued, “With the recent flooding of the Mississippi River, we cannot forget the value that wetlands play in flood reduction.”
Mike Theo, Vice President of Public Affairs of the Wisconsin Realtors Association said, “This bill represents an appropriate and balanced response to the U.S. Supreme Court’s decision earlier this year. During the numerous discussions regarding this compromise legislation, our goal was to improve public policy, improve the permitting process, and improve private property rights protection. This law will accomplish all of these goals.” Theo further indicated, “I am pleased that we could come to the table with Wisconsin Wetlands Association, and that our concerns were acknowledged during these important discussions.”
The influential hunting and fishing community helped persuade the Legislature to act expeditiously on this critical issue. On April 9th, Conservation Congress delegates from 57 counties passed a strongly worded resolution calling on our state officials to “protect our state’s vulnerable isolated wetlands by adopting legislation assigning permitting authority for these wetlands to the Wisconsin Department of Natural Resources.” Countless letters, phone calls, and e-mails were generated by members of many sporting groups. “This bill represents one of the most significant conservation measures of the decade,” stated Lon Knoedler, Wisconsin State Chair of Ducks Unlimited. “Had we not restored protection to our wetlands, all of DU’s exhaustive past and future efforts to restore and protect wetlands in this state could have been offset if a significant portion of these unprotected wetlands were lost.”
The Wisconsin Council of Trout Unlimited played an active role in supporting good wetland protection. Jeff Smith, Chair of TU’s state legislative committee, said, “Trout Unlimited applauds this bi-partisan effort to fix the wetlands issue. However, it took an emergency to set that stage. TU members hope the Legislature can build on this success to go on to tackle issues such as high capacity wells and use value taxation incentives in the same spirit.”
The new law came at a price, however; various wetlands were filled this spring throughout the state as a result of the lost state and federal jurisdiction over isolated wetlands. A two-acre wetland fill for a truck stop near Madison had been stalled for years until the Army Corps and DNR no longer had jurisdiction over the wetlands, and the fill activities proceeded hastily during the interim.