January 29, 2001

   LANSING - DNR Director K. L. Cool announced that Captain Richard C. Ashore has been selected as the Department's new Law Enforcement Chief. Ashore replaces Herbert Burns, who retired June 30, 2000. Ashore first began his duties as a Michigan Conservation Officer in August 1974.

   WASHINGTON (UPI) - The Supreme Court split 5-4 along ideological lines on January 23 to rule that the Clean Water Act does not give the Army Corps of Engineers jurisdiction over isolated wetlands. The ruling was a major defeat for environmentalists.

   The 1972 Federal Water Pollution Control Act, generally known as the Clean Water Act, plainly gives the Army Corps of Engineers jurisdiction over U.S. "navigable waters." At issue before the Supreme Court was whether those "navigable waters" also included isolated ponds or wetlands. In the narrow majority opinion handed down by the court Tuesday, Chief Justice William Rehnquist said they did not.

   While the Supreme Court has ruled in the past that the federal act covers wetlands adjacent to navigable waters, Rehnquist said from the bench, "We have never held that it extends to isolated ponds that have no nexus [connection] to navigable waters." Rehnquist was joined by fellow Justices Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy. Justice John Paul Stevens dissented, joined by fellow liberal Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. Stevens said at one point, the language of the Clean Water Act extends its jurisdiction to all of "the waters of the United States, including the territorial seas. That definition requires neither actual nor potential navigability,"

   The case centered on a 533-acre site near Chicago that 23 communities want to use as a landfill. For 30 years prior to 1960, the parcel was mined by a gravel company, leaving a number of watery pits and trenches. The Army Corps of Engineers in 1987 blocked the landfill plan, citing its authority under the Clean Water Act to issue permits for the filling of "navigable waters." In the act, "navigable waters" are defined as "the waters of the United States, including the territorial seas." The Corps said the gravel pits fit the definition because they were used by migrating birds that cross state lines.

   Over the years, the Corps has interpreted "navigable waters" to include everything from landlocked lakes to intermittent streams, mudflats and prairie potholes. A little more than 17acres of these "wetlands" were earmarked to be part of the landfill. After receiving all the necessary permits, and two rejections of jurisdiction by the Army Corp of Engineers, the agency thought it was in shape to begin construction. However, the Corps changed their minds about jurisdiction after a state nature commission determined that the ponds were habitat for 121 bird species, including several species of migratory birds.

    When the suburban agency applied in 1994 for a federal permit under the Clean Water Act,

the corps, as one federal agency doing the reviewing, denied it. The local agency then

 filed suit. A federal judge ruled for the corps, and an appeals court affirmed the judge's action. The appeals court cited Congress's power to regulate interstate commerce - the Commerce Clause of the Constitution - because of the federal govt's large-scale efforts to preserve migratory birds. The local agency then asked the Supreme Court for review, citing a conflict of opinions among the federal appeals courts. 

   In its ruling reversing the lower courts, the Supreme Court majority avoided the federalism issue raised by the use of the Commerce Clause in the appeals court decision. Rehnquist said that because the Supreme Court majority ruled that the plain language of the act did not extend its jurisdiction to isolated wetlands, it was not necessary to rule on whether Congress could putatively extend such jurisdiction to the wetlands.

   Now state and federal agencies are scrambling like so many un-indicted criminals searching for loopholes in the high court's decision to justify government agendas that may be contrary to the court's decision.

   To illustrate, a recent news release issued by the Wisconsin DNR says in part "State wetland officials continue to be concerned about the potentially significant effect that a recent U.S. Supreme Court decision may have on the protection of Wisconsin’s remaining wetlands. Wisconsin wetland officials worry that taken broadly, the court decision could mean the state has lost its ability to protect millions of acres of wetlands."

   The news bulletin goes on to say "top lawyers for the Corps and the USEPA took a fairly narrow interpretation of the scope of the court’s decision, says DNR Secretary George Meyer. 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. And 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, they left open the door that the Corps may assume jurisdiction if it’s shown a waterbody could be used for interstate commerce such as hunting, fishing or bird watching."

   "We’re encouraged by this initial reading from the corps and EPA of the U.S. Supreme Court’s decision," says Meyer. "We’re cautiously optimistic that this initial interpretation of the court’s decision will hold." Meyer added the DNR would continue to work with lawmakers to make sure protections are restored to all wetlands affected by the decision.

   The Indiana DNR is considering changing the number and species of trout and salmon stocked into Lake Michigan tributaries to improve fishing, but they want to hear angler's opinions about the plan before proceeding. Under the proposed stocking plan, the DNR will increase the number of coho salmon stocked into Trail Creek and the Little Calumet River each year.  The plan also calls for stocking additional winter-run steelhead trout in the St. Joseph River instead of chinook salmon.
   The current coho stocking target is 150,000 fish annually.  The proposal is to increase coho stockings to 240,000 each year, a 60 % increase.  The switch from chinook salmon to winter-run steelhead in the St. Joseph River is expected to make more fish available in the river. Winter-run steelhead, known as Michigan strain, would be available to anglers from late October through April and would boost the already world-class summer-run Skamania steelhead trout fishery.
   "We've never provided much of a chinook fishery in the St. Joe, despite stocking over 1.7 million chinooks since 1991," said DNR fisheries chief Bill James. "By cutting the chinook stocking, we can add thousands of coho and steelhead, which should provide better fishing in the lake and streams."
   The number of fish stocked in Lake  Michigan is limited by hatchery capacity

   The USFWS has opened an office in Plymouth, Ind. to provide information about the Grand Kankakee Marsh National Wildlife Refuge proposed for northeastern Illinois and northwestern Indiana. The office is located at 507 Colonial Court, Suite B, which is located within the Bottoroff Chiropractic Office Complex at 315 East Jefferson. Office hours are M-F 7:30 a.m. to 4:00 p.m. The office will be staffed by Project Leader Tim Bodeen. Bodeen is available to meet with and to answer questions about the proposed Refuge, the National Wildlife Refuge System, and the activities of the Service. Phone #: 219-935-3411.

   Frank Ambrose of Bloomington, age 26, was arrested by Indiana conservation officers this morning and charged with spiking trees at
Morgan-Monroe State Forest in June 2000. Ambrose was arrested in Bloomington and taken to the Monroe County Jail.  The Earth Liberation Front, commonly known as ELF, claimed responsibility for the timber spiking. The arrest is the result of a six-month investigation by conservation officers. The conservation officers were assisted in the case by the FBI. Timber spiking is a felony.