A St. Louis County Commissioner recently brought up the issue of the Clean Water Restoration Act of 2007 at a recent St. Louis County Board Meeting. The following information describes the act and clarifies issues surrounding it. 

Marcus Hall, Public Works Director and County Engineer of St. Louis County strongly supports Rep Oberstar's efforts and testified before the Transportation and Infrastructure Committee of the United States House of Representatives, and advocated for the Clean Water Restoration Act of 2007. In his testimony he makes clear that Minnesota's guidelines are tough, that he values wetlands and wants a great transportation system. He asks that there be clarification in the administration of the law. You may read his testimony here ....... Marcus Hall's Testimony  

The Clean Water Restoration Act of 2007
Myth –v- Fact

Congressman Jim Oberstar is introducing legislation to fix the Clean Water Act after it was damaged by two U.S. Supreme Court rulings.  The pair of rulings issued in 2001 and 2006 question the ability of the Environmental Protection Agency and the U.S. Army Corps of Engineers to enforce the Clean Water Act on wetlands, streams and ponds that are not part of a major “navigable” waterway. 

Opponents of this legislation have begun a misinformation campaign.  It’s time to set the record straight.

Myth:  “If this bill becomes law, it would be the most far-reaching expansion of the Clean Water Act in more than three decades and could extend federal jurisdiction to everything from ditches and gutters to groundwater.”

And

“The new definition of "waters of the United States" would include everything from swimming pools and hot tubs to stock watering ponds on private property.”

Fact: The two examples cited above show how desperate industry groups are to weaken the protections of the Clean Water Act.   Many states, like Minnesota, have wetlands and water protection laws that are tougher than the federal Clean Water Act.  In those states the Clean Water Restoration Act of 2007 (CWRA) will have no regulatory impact.

This purpose of the CWRA is to return the Clean Water Act to the authority it had before the SWANCC and Raponos Supreme Court Decisions.  This is stated clearly in first sentence of the bill:

“The purposes of this Act are as follows: (1) To reaffirm the original intent of Congress in enacting the Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816) to restore and maintain the chemical, physical, and biological integrity of the waters of the United States.”  Source: HR 2421 Clean Water Restoration Act of 2007.

Prior to the SWANCC and Raponos rulings the Clean Water Act (CWA) did apply to all waters of the United States even when the term “navigable waters” was used.  This is clearly stated in the Definitions section of the law:   “SEC. 502 (7) The term ‘‘navigable waters’’ means the waters of the United States, including the territorial seas.”

The Clean Water Act was established law with nearly 35 years of regulatory guidance when the U.S. Supreme Court ruled on the Raponos case.  CWRA would nullify the impacts of the SWANCC and Raponos Supreme Court Rulings and restore the regulatory guidance that has worked well for the past three and a half decades.

Myth:  The bill would only create more paperwork for developers.  For counties and local governments it ensures more unfunded mandates and preemptions, without necessarily ensuring clean water.

Fact:  In actuality, the two U.S. Supreme Court decisions increase the time it will take to obtain wetlands permits, because The Army Corps of Engineers will now have to determine if it does or does not have the jurisdiction before it can even begin the permitting process.  This will be accomplished by filling out a 12 page form with the assistance of an 85 page instruction book.  The Army Corps of Engineers estimates that jurisdictional determination will take up to six months.  CWRA resolves all jurisdictional issues and allows for a more streamlined permitting process.

On June 6th the Bush Administration issued new regulatory guidance to the EPA and the Army Corps of Engineers that takes the two Supreme Court Decisions into account.  Within a day industry sources began criticizing the new guidelines as being complex and vague.  This reality was recognized by the pro-industry publication Inside EPA.
“A key state source adds that EPA could face a host of pitfalls in implementing the significant nexus test because it is complicated and vague. The source says the guidelines are "going to add a layer of complexity" to the permitting process and if the agency or state regulators are "challenged on their decisions, it’s going to be very difficult" to defend them should permit applicants try to cast doubt on the significance of a wetland's connection to jurisdictional waters.”  Inside EPA, June 8, 2007

Myth:  CWRA is unconstitutional because of the Commerce Clause of the U.S Constitution.  The federal government should only regulate larger interstate waters, leaving smaller waters to the states.

Fact:  Water flows downhill and, in many cases, across state lines.  Hydrologists will tell you that there are actually very few “isolated waters” that are not connected to larger watersheds. The two Supreme Court rulings ignore this basic principle of hydrology.  Contamination that starts in a remote rural area can work its way into a larger watershed and impact people hundreds of miles away. 

The best example of this is the Ogallala aquifer.  It supplies water to eight states from Nebraska to the Texas panhandle, but it is subterranean and therefore not connected to any “navigable waters”. The Ogallala is refilled by water that filters in from numerous wetlands that also are not connected to any navigable waterways.  The two Supreme Court rulings could leave the wetlands that filter and recharge the Ogallala unprotected by the Clean Water Act.

Myth: CWRA will impose new, onerous regulations on farmers, ranchers, mining and timber companies.

Fact:  The Clean Water Act exempts normal farming and ranching activities from regulation.  It also contains exemptions for many industries including mining and timber.  [Federal Water Pollution Control Act, Sec. 404 (f) (1)]  CWRA restates these exemptions to make it perfectly clear that new regulations are not to be enacted in these vital areas of our economy.

Fact: In the last century the United States has lost half of its wetlands.  Halting the loss of more wetlands is one of the top environmental priorities of the Bush Administration.

Fact: Thirty states have no laws on the book to protect freshwater wetlands and streams.

Fact: Five states have no water pollution law at all.

For decades, the Clean Water Act has protected thousands of waters, including wetlands, that protect our lives and livelihoods, support our nation’s economic well being, and sustain our environment.  Over its thirty-five year history, the Clean Water Act has been critical in the restoration of water quality and drinking water supplies; the protection of water-related habitat essential to waterfowl, wildlife, and fisheries.  As evident from the aftermath of the 1993 Midwest flooding and from Hurricanes Katrina and Rita, the protection of wetlands for flood storage and as natural barriers to potential storm surges is critical for public safety and the protection of public and private property from flooding.

CWRA keeps this critical law working for the American people and protects our environment for generations to come.

Clean Water Restoration Act of 2007

This legislation, which is needed to protect the nation’s waters from pollution, has been introduced in the 110th Congress by our own Congressman Jim Oberstar. It has also been recently reintroduced in the Senate by Senator Russ Feingold.

The bill would reaffirm the historical jurisdiction of the 1972 Clean Water Act ensuring all ʺwaters of the United Statesʺ retain the Clean Water Act protection they had for more than thirty‐four years. We need your leadership on this issue as Executive of a state known for vast and beautiful lakes and rivers.

This bill does not create new protective authority, but simply restores the regulatory status quo. It is needed because decisions by the Supreme Court over the past few years (Rapanos/Carabell 2006; SWANCC 2001) and administrative actions by the Environmental Protection Agency and Army Corps of Engineers have muddied the waters regarding the jurisdiction of the Clean Water Act. These actions have violated the legislative intent of the law making the Clean Water Restoration Act critically important.

Waters most at risk of losing federal protections include small and seasonal streams and rivers, and nearby wetlands. According to the US EPA, 59 percent of the nation’s streams and rivers, measured in miles, fall into this category of waters. Source water protection areas containing these small or intermittent streams and rivers provide water to public drinking water supplies serving more than 110 million Americans. Wetlands provide important functions in our watersheds, from reducing flooding to offering habitat to ducks and other wildlife. Wetlands are also critical in the fight to mitigate global warming impacts since they are natural carbon sinks, where carbon is stored rather than released into the atmosphere, and offer regulation of droughts.

The regulatory uncertainty created by the administrative ruling is having real economic impacts in Minnesota. It creates a greater burden on state agencies to determine, in conjunction with the Army Corps of Engineers, whether or not a project falls under the Clean Water Act. This leads to increased administrative costs as well as increased project costs. Marcus Hall, Director of Public Works for St. Louis County, recently testified before the House Transportation and Infrastructure Committee that changes to the Clean Water Act could add as much as $2 million per year to the costs for maintenance and construction of the county’s roads.

Great strides toward cleaning up and restoring our nation’s lakes, rivers and streams have been made in the thirty‐four year history of the Clean Water Act, but there is much work still to do. Today, over forty‐five percent of the rivers and lakes in the United States are still too polluted to be safe for fishing, swimming, our drinking water supply, wildlife habitat and other uses.
The Clean Water Authority Restoration Act (CWARA) will return us—in Minnesota and throughout the country— to the path of cleaning and protecting the nation’s waters.

Bill would turn tide on wetland protection
John Myers
Duluth News Tribune - 10/18/2007
Exactly 35 years after President Nixon signed the Clean Water Act into law, a battle is raging over exactly what water the federal law should protect.

For more than three decades the federal government enforced the act not just on big federal waterways such as the Great Lakes and Mississippi River, but ponds and tributaries, too.

The law is credited with cleaning up the nation’s nastiest waters, including the Cuyahoga River in Cleveland, which once was so polluted it erupted in flames, and the Northland’s St. Louis River, which was a cesspool of industrial and municipal waste.

Not only did the federal government begin regulating waterways, but it began to pay to clean them up. And the act kept some small waters and wetland areas from being bulldozed under.

Some of those protections ended, however, after two U.S. Supreme Court decisions. The court ruled in split decisions in 2001 and 2006 that federal regulators must prove the connection to larger, “n avigable’’ waters before the government can intervene to protect small waters.

The Supreme Court decisions especially affected shallow wetlands, those well upstream of big lakes and rivers, which now have little or no federal protection against filling and draining. The U.S. Environmental Protection Agency says the decisions left 20 percent of the nation’s remaining wetlands vulnerable.

Private property groups, mining companies and developers lauded the court’s actions, saying it frees landowners and local governments to do as they see fit with small waterways.

But legislation proposed by U.S. Rep. Jim Oberstar, D-Minn., and U.S. Sen. Russ Feingold, D-Wis., would turn back the court decisions. The Clean Water Restoration Act, which has 170 Republican and Democratic co-sponsors in the House, restores what Oberstar says was the original intent of the 1972 act, namely to protect almost all waters in the U.S., not just navigable waters.

Oberstar called the court’s rulings a “shameless’’ effort to legislate from the bench as well as a misinterpretation of the law Nixon signed and which Oberstar helped draft as a Congressional aide.

Many scientists and conservation groups say that protecting small waters, even those seemingly disconnected from larger water bodies, is critical to protect against erosion, filter pollution, buffer against floods and provide critical fish and wildlife habitat.

“The science on this is clear. But in recent years, we’ve seen a disconnect between the science and the law on this issue,’’ Judy Meyer, a University of Georgia research scientist, said in July during House hearings on the Oberstar bill. “These really are not isolated waters but are indeed hydrologically, chemically and biologically connected and are integral to downstream waters.’’

CONSERVATION OR

RIGHTS infringement?

The bill is opposed by the nation’s largest farm industry groups, along with developers, pap er industry and mining organizations, anti-tax groups and conservative think tanks that say the legislation would expand the reach of federal regulation.

Some northern Minnesota property rights advocates and county commissioners say the Supreme Court got it right, and that efforts to restore protections to small waters will erode the rights of private property owners.

The latest opposition comes from the little-known Northern Counties Land Use Coordinating Board and the Twin Cities-based American Property Coalition that is run by Linda Runbeck, a former Minnesota state senator and the campaign manager for Rod Grams in his unsuccessful 2006 bid to unseat Oberstar.

Runbeck and Don Parmeter, director of the coalition, spoke against the bill last month at two public hearings held by the Northern Counties Land Use Coordinating Board in Thief River Falls, Minn., and International Falls.

Parmeter calls the bill “arguably the biggest federal power grab in th e nation’s history.”

“The bill is a wolf in sheep’s clothing. Oberstar is using the popular political appeal of clean water and the Federal Water Pollution Control Act of 1972 to expand federal jurisdiction over land and water. The bill replaces the term ‘navigable’ with ‘waters of the U.S.’ which includes wetlands, sloughs, meadows, prairie potholes, playa lakes, ponds, mudflats, sandflats and intermittent streams,’’ Parmeter said. “This is not a restoration bill. It is an expansion bill that infringes on the constitutional rights of citizens and state and local governments.’’

The debate has caused some strange rifts. Marcus Hall, director of public works for St. Louis County, testified in Washington in July that the Oberstar bill is needed to clear up confusion among regulators and allow stalled projects to move forward. But St. Louis County Commissioner Dennis Fink strongly opposes the bill.

More than 300 organizations — representing hunters, family f armers, conservation groups, natural resource agencies, environmentalists and others — are on record in support of the Oberstar bill.

“Without the act’s protection for all important wetlands, waterfowl in the most vital wetlands in North America are imperiled,’’ Alan Wentz, Ducks Unlimited conservation and communications manager, said in a statement Tuesday. “Ducks are at risk, and the future of duck hunting is at risk.’’

Oberstar, chairman of House Transportation and Infrastructure Committee, said he expects to move the bill from committee to the House floor in coming weeks. Feingold said he expects to move his bill later this year.

JOHN MYERS can be reached at (218) 723-5344 or (800) 456-8282, or by e-mail at jmyers@

duluthnews.com.

Gnesen has recently unanimously passed a resolution in favor of the Limited Designation, it has not yet been received.

The Alden Town Board has unanimously passed the following resolution in favor of a Limited OHV use classification for the Cloquet Valley State Forest.


To preserve the tranquility and the environment of the Alden Township area, a large portion of which is within the Cloquet Valley State Forest, the Alden Township Board states that it is against any new ATV trails or the expansion of any ATV trails in the Alden Township area and urges the St. Louis County Commissioners and the Department of Natural Resources to adopt a Limited OHV use classification status for the Cloquet Valley State Forest.

Therefore be it resolved that the Board of Supervisors of the Town of Alden respectfully requests the MDNR and its commissioner and the St. Louis county Board of Commissioners to exercise their authority and classify all State land within Alden Township, including county managed tax forfeited lands, as "LIMITED" with regard to OHV use.

Pequaywan Township Resolutions

Resolution 0701

Whereas, on April 10, 2007, the North Shore ATV Club presented a proposed GrantinAid

(GIA) trail to the Town of Pequaywan for input, and

Whereas, the proposed GIA trail presented was substantially the same as an earlier

proposed trail, submitted as part of a proposed 70mile

destination trail, which was not

acceptable to a majority of the property owners and residents of the Town of Pequaywan,

and,

Whereas, some individuals and groups have expressed a vision for Pequaywan Township

and the Cloquet Valley State Forest as a destination for ATV/OHV tourism for the

Midwest, and,

Whereas, the vision of these individuals and groups is not shared by a majority of the

property owners and residents of the Town of Pequaywan and is being advocated in

complete disregard of the concerns of the majority of residents and property owners in

the area,

Therefore, be it resolved that the Town of Pequaywan Board of Supervisors, backed by a

majority of its residents and property owners, do not approve of the current proposed

GIA trail or the plans for the Cloquet Valley State Forest to become or be promoted as an

ATV/OHV tourist destination within the Town of Pequaywan.

Adopted May 8, 2007

Resolution 0702

Whereas, the Town of Pequaywan is located wholly within the Cloquet Valley State

Forest, and,

Whereas, many of the current trails are within close proximity to residential areas, and,

Whereas, no environmental study has been done to support the "managed" trail system

within the Cloquet Valley State Forest, and

Whereas, the managed trail system is basically a nonmanageable

system allowing the

(ATV) riders to traverse almost any area without regards to environmental damage or the

rules for riding, and

Whereas, interpretation and enforcement of the laws in managed riding areas are

extremely difficult, and,

Whereas, the limited trail system, signs and maps of specific trails, for ATV/OHV use,

makes enforcement effective and rules governing ATV/OHV use easier to interpret, and,

Whereas, the DNR agrees that it is important to achieve managed use on managed trails

and that this is accomplished within limited forests, and

Whereas, many of the current ATV trails were originally walking trails used for hunting,

hiking and the general appreciation of the forest, and

Whereas, the majority of walking trails have been already taken over and sometimes

destroyed by the ATV riding public, and

Whereas, the local government, in this instance the Town of Pequaywan, should have

been included early in the process so local input and concerns could be addressed, and,

Whereas, the majority of the land owners and residents within the Town of Pequaywan

support a limited forest classification,

Therefore, be it resolved that the Board of Supervisors of the Town of Pequaywan have

determined that the majority of the residents and property owners of the Town of

Pequaywan feel a limited trail system in the Cloquet Valley State Forest best serves all

parties in the area. Therefore the Town of Pequaywan and its supervisors request the

Department of Natural Resources and the St. Louis County Board to classify the Cloquet

Valley State Forest as a "limited" trail system.

Adopted May 8, 2007

Ault Resolution

WHEREAS, The Northshore ATV Club has proposed a GrantinAid

(GIA), All Terrain

Vehicle

(ATV) trail which would be built in a portion of Ault Township: and

WHEREAS, The Ault Township Board passed on December 6, 2006, a resolution in

opposition to a DNR proposed conceptual 70 mile AllTerrain/

Vehicle/Off Highway

Motorcycle (ATV/OHM) route which traveled through a portion of Ault Township.

WHEREAS, The current proposed GrantinAid

(GIA) all Terrain Vehicle (ATV) Trail’s

route

is very similar to the DNR proposal which was opposed by the Ault Town Board.

WHEREAS, Ault Township is located within the Cloquet Valley State Forest which

currently has numerous trails available for ATV/OHM use.

Now, THEREFORE BE IT RESOLVED, that Ault Township, due to negative impacts on

environmental, economic, safety and quality of life issues oppose the proposed GrantinAid

(GIA) All Terrain Vehicle (ATV) trail within Ault Township.

Now, THEREFORE BE IT RESOLVED, that the Ault Township Board opposes the

proposed GrantinAid

(GIA) All Terrain Vehicle (ATV) Trail being located within Ault

Township.

Now, THEREFORE BE IT RESOLVED, that this resolution be presented to each of the

St. Louis County Commissioners, The St. Louis County Land Commissioner, The

Department of Natural Resources Commissioner and Brain McCann, Department of

Natural Resources, Trail and Waterways Recreational Planner.

Fairbanks Resolution

Resolution in Favor of Designating All State Land within Fairbanks

Township to be “Limited” in use with regard to OHV traffic:

To preserve the tranquility and the environment of the Fairbanks

Township area, which is located entirely within the Superior National

Forest, the Fairbanks Township Board states that it is against any new

ATV trails or the expansion of any ATV trails in the Fairbanks Township

area and urges the St. Louis County Commissioners and the Department of

Natural Resources to adopt a Limited OHV use classification status for

the Superior National Forest.

The Board of Supervisors of Fairbanks Township respectfully requests

the MDNR and its Commissioner and the St. Louis County Board of

Commissioners to exercise their authority and classify all State land

within Fairbanks Township including county managed tax forfeited lands

as limited with regard to OHV use.

Whereas the “Closed” classification is the most restrictive and means

there shall be NO OHV use,

Whereas the “Managed” classification is the least restrictive and

allows riding on all trails unless posted closed, (however, it is

difficult to enforce and its continued use places the region at risk as

a sustainable forest with many varied uses),

Whereas the “Limited” classification is a compromise between Closed and

Managed and allows for opportunities for OHV Riding but restricts

riding to trails designated as open and retains exceptions for hunting

and trapping and requires the State to permit access trails to remote

cabins and hunting shacks over State lands as needed, and

Whereas the Limited classification is less difficult to manage and

enforce and requires that OHV trails be sustainable,

Whereas neither the DNR nor St. Louis County have developed a

comprehensive outdoor recreation plan based on sound and unbiased

environmental, economic and social evidence which balances conflicting

needs of the Forest Industry, nonmotorized

recreation, motorized

recreation and the needs of residents and property owners within St.

Louis County,

Whereas the expense for maintenance and enforcement with regard to OHV

use on all lands under DNR management, demonstrated by the DNR’s

current requests before the legislature which are substantial, and in

the absence of an agreement to the contrary, St. Louis County may be

responsible for these services, and the resulting cost may be born by

the taxpayers of St. Louis County,

Whereas neither the DNR nor St. Louis County have provided any

documentation or example of the successful use of a managed

classification in a forest within the United States and all reviewed

materials indicate that managed classification of forests result in

trail proliferation and the degradation of the resource,

Whereas the economic contribution of the residents and seasonal

residents, and outdoor education/and other businesses within Fairbanks

Township are a substantial contribution to the area economy and to the

state and local taxing authorities and will be adversely affected by

the proliferation of OHV trails and increase of OHV riders in the area,

Whereas traditional uses of the Superior National Forest/Cloquet Valley

State Forest regions have been hunting, hiking, snowmobiling, cross

country skiing, berry picking and fishing with ATVs used primarily to

access remote cabins and for tasks on private property,

Whereas ATV trail riding in the forest is relatively new, and while

heavily promoted and touted as a potential tourist attraction by the

OHV industry and some politicians, it is not something which the vast

majority of residents of St. Louis County or Fairbanks Township wish to

encourage or see developed as a destination for tourists, in particular

in a national forest,

Whereas the most recent recreation survey prepared by St. Louis County

in 2002, reflects an overwhelming majority of citizens of St. Louis

County being of the opinion that there are enough or too many OHV

trails,

Whereas the residents and property owners of Fairbanks Township wish to

preserve the tranquility and natural beauty of the area and are of the

view that this may be best accomplished with a Closed or Limited trail

classification,

THEREFORE BE IT RESOLVED that the Board of Supervisors of the Town of

Fairbanks respectfully requests the MDNR and its Commissioner and the

St. Louis County Board of Commissioners to exercise their authority and

classify all State land within Fairbanks Township, including county

managed tax forfeited lands, as “LIMITED” with regard to OHV use.