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By Shawn Perich
Field Editor

Washington D.C. - Legislation intended to restore what conservationists believe was the original intent of the Clean Water Act - extending protection to isolated wetlands - has been introduced in the House and Senate.

Congressmen Jim Oberstar of Minnesota and John Dingell of Michigan introduced the Clean Water Authority Restoration Act of 2003 in the House of Representatives, saying they are concerned that a 2001 Supreme Court decision and recent regulatory actions of the Bush administration have put American wetlands at risk.

"The Supreme Court got it wrong, and now the Bush administration is using this narrow ruling to attempt to roll back 30 years of Clean Water Act progress," Dingell said. "The legislative history of the Clean Water Act clearly and unambiguously states that the statute applies to all the waters of the United States. I know this because I personally included it in the Congressional Record in 1972. The bill we are introducing today reaffirms the original intent of the Act."

In the so-called SWANCC Decision, issued in January, 2001, the Supreme Court ruled that the migratory bird provision of the Clean Water Act (CWA) could not be used as the sole reason for protecting isolated wetlands. Under the direction of the Bush administration, subsequent rule-making revisions proposed by the Corps of Engineers and the Environmental Protection Agency remove CWA protection for these wetlands.

"Potentially, the proposed rule-making changes could affect 20 percent of the nation's wetlands," says Jim Mosher, policy analyst for the Izaak Walton League of America.

Especially at risk are the prairie potholes of the Dakotas, some of the best waterfowl nesting habitat left on the continent. John Devny, biologist with the Delta Waterfowl Association in Bismarck, says further wetlands loss on the American prairies could be devastating for waterfowl, because brood surveys show more ducks are now nesting in the United States than in Canada.

"If you lose the key elements of regulatory protection, you just can't keep up with conservation efforts," Devny says.
In the Dakotas, the introduction of genetically altered "Round-up ready" crops has spurred farmers to plow up prairie grasslands formerly used as pastures and created incentive to tile and drain small wetlands within the new cropland. Losing those wetlands could significantly reduce duck populations.

Ron Reynolds, the U.S. Fish and Wildlife Service's team leader for habitat and population evaluation in Bismarck, says spatial analysis data indicates that an estimated 70 percent of the breeding waterfowl that settle in the Dakotas are attracted to temporary and seasonal wetlands that are mostly less than one acre in size. About 50 to 60 percent of those wetlands are shallow sloughs within croplands and vulnerable to drainage under the new interpretation of CWA.

"When you drain those wetlands, you create a permanent drought for ducks," Reynolds says.

He said the loss of those small wetlands farther east, such as in Minnesota, already has caused permanent alterations in the continental duck population. As recently as the 1950s, pintails - a species associated with the shallowest wetlands and open grasslands - were found in equal numbers to mallards. Subsequent declines in their numbers has led to pintail harvest restrictions for hunters.

As wetlands disappear, the potential for future closed duck hunting seasons increases, particularly during drought years. Reynolds says with fewer breeding areas, populations will fall to lower levels during drought and not reach former high levels in wet years.

Drainage, and permanent landscape degradation, may happen quickly if Bush Administration rule changes allow it to occur.

"There is always a pent-up demand to drain wetlands," Reynolds says. "It can happen quickly when a window of opportunity appears."
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