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LYLE Les A From: DUCKETT Scott Sent: Monday, January 29, 2001 8:24 AM To: *Eugene Wetheads Subject: RE: More late breaking news on ACOE Supreme Court decision. The Portland District Corps of Engineers will present their plans for interpreting "isolated wetlands" this Friday m Portland. The Oregon Division of State Lands has not issued a response to any changes to their regulatory program. This ruling shows the importance of our acquisition program through the partnership and our own local West Eugene Wetlands Plan. I've asked for written materials from the Portland District and will share any findings as they become available. - Scott ---- Original Message- - From: TAYLOR Trevor H Sent: Friday, January 26, 2001 7:32 AM To: *Eugene Wetheads Subject: More late breaking news on ACOE Supreme Court decision. Narrow Interpretation Could Declaw Wetlands Ruling By Cat Lazaroff MADISON, Wisconsin, January 24, 2001 (ENS) - Lawyers for the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have issued a narrow interpretation of the scope of a Supreme Court decision that could threaten wetlands nationwide. But even the narrow interpretation leaves millions of wetland acres at risk, experts say. On January 9, the U.S. Supreme Court ruled that the U.S. Army Corps of Engineers had exceeded its statutory authority by asserting it had jurisdiction, under the Clean Water Act, over ponds used by migratory birds in an Illinois case. The ruling left isolated wetlands without federal protection in many cases. Because state wetland protection rules are often based on Army Corps of Engineers authority to act under the federal Clean Water Act, state officials worry that taken broadly, the court decision could cost them their ability to protect millions of acres of wetlands. In a legal opinion issued late Friday, top lawyers for the Corps and the EPA took a fairly narrow interpretation of the scope of the court's decision. They limited the ruling's scope to "isolated" wetlands with no connection to any lake, stream or other water considered to be navigable water of the United States. While they said the ruling means the Corps could no longer assume jurisdiction over such a wetland solely if the waterbodies provided habitat for migrating waterfowl, the lawyers left open the door that the Corps may assume jurisdiction if it is shown that a waterbody could be used for interstate commerce such as hunting, fishing or bird watching. "Under this opinion, substantial wetland resources will still be left without state or federal regulation of activities that seek to fill the wetlands, but we're encouraged by this initial reading from the Corps and EPA of the U.S. Supreme Court's decision," said George Meyer, secretary of the Wisconsin Department of Natural Resources (DNR). "We're cautiously optimistic that this initial interpretation of the court's decision will hold. While it narrows the breadth of the decision, it appears that millions of Wisconsin wetland acres are still at risk. We will know the precise acreage only after Corps biologists apply their new guidance." Wisconsin has 5.3 million acres left of the 10 million acres present before statehood. Even with this opinion, Meyer said, "unless we get legislation to assure that Wisconsin can apply its water quality standards, we'll lose valuable wetlands and the benefits they provide such as waterfowl, fish and amphibian habitat, flood storage, water quality protection and recreation." In fact, Wisconsin DNR lawyers have already been receiving calls from people who want to know whether they can go ahead with projects to fill wetlands - including some projects that had been denied m the past. "We are already beginning to see the fallout from this decision," Meyer said. The U.S Supreme Court case involved a group of northern Illinois communities that wanted to build a solid waste facility on a 533 acre site that included an abandoned sand and gravel site containing a number of ponds used by migratory birds. The Corps originally declined jurisdiction over the Illinois project because the ponds were not considered "wetlands," but changed its stance after becoming aware that migratory birds used the ponds. The municipalities challenged the Corps' assertion of jurisdiction in the case but lower courts upheld Corps jurisdiction until the U.S. Supreme Court ruled against the federal agency. 1