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Minnesota Department of Natural Resources Minnesota Department of Natural Resources 500 Lafayette Road St. Paul, Minnesota 55 155-40-_ April 8, 2003 Water Docket U.S. Environmental ProtectionAgency Mailcode 4101T 1200 PennsylvaniaAve. N.W. Washington D.C. 20460 Subject: Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States". Docket ID No. OW-2002-0050; 68 FR 1991-1 997. The State of Minnesota has long demonstrated its appreciation for and commitment to preserving the values of our wetland resources. Our wetlands comprise a diversity of wetland types, from the prairie potholes of the southwest to the vast peatlands and coniferous-forested wetlands in the north, to the rich floodplain forests and riverine wetland complexes along the Upper Mississippi River. In fact, Minnesota has more wetlands than any other states except Alaska and Florida, approximately 10.6 million acres. Despite this relative abundance, Minnesota's current wetland acreage is estimated to be about half of what it was prior io European settlement (Anderson and Craig, 1984), The loss of wetlands has been overwhelmingly concentrated in the southern and western parts of the state, where agricultural land use predominates. Some counties in these areas have lost up to 99% of their original wetland acreage (Anderson and Craig, 1984). Our remaining wetlands are critically important for maintaining the physical, chemical and biological integrity of our surface and ground water resources here in the "Land of 10,000 Lakes". And, given our location as the headwaters for three continental watersheds, our wetlands also play an important role in maintaining the integrity of waters in other states downstream and in Canada. Minnesotans have a relatively long history of conservation and protection of our water resources. Our first law aimed at regulating impacts to wetlands was passed in 1937, establishing that some wetlands provided public benefits and could not be drained without a permit. We recently celebratedthe 50thanniversary of the "Save the Wetlands" Program, which was the precursor to our wildlife management area acquisition efforts. There have been many wetland policy and program initiatives in the interim, culminating in 1991 with the passage of the Minnesota Wetland Conservation Act, which established that it is in the public interest to: 1) achieve no net loss in the quantity, quality and biological diversity of Minnesota's existing wetlands, and to 2) increase the quantity, quality and biological diversity of Minnesota's wetlands by restoring or enhancing diminished or drained wetlands. Today, wetland regulation and management in Minnesota is delivered through a carefully crafted blend of federal, state and local programs. As a state with an abundance of wetlands DNR Information: 651-296-6157 1-888-646-6367 TTY:651-296-5484 1-800-657-3929 An Equal Opportunity Employer Printed on Recycled Paper Containinga Who Values Diversity a Minimumof 10% Post-Consumer Waste and having long experience in regulating and managing these resources, we are pleased to provide these comments on the proposed rulemaking. These comments are a collaborative effort of the Minnesota Department of Natural Resources, the Minnesota Pollution Control Agency, and the Minnesota Board of Water and Soil Resources. Our comments are organized around specific issues identified in the Advance Notice of Proposed Rulemaking (ANPRM). Issue No. 1: Whether the regulations should define ”isolated waters,“ and if so, what factors should be considered in determining whether a water is or is not isolated for jurisdictional purposes? Comments: We do not believe the term “isolated waters” can be defined in a practical manner for waters in Minnesota. In a purely hydrological sense, very few if any waters are truly isolated. Surface connectivity is dynamic (Liebowitz and Vining, 2003). Water bodies lacking distinct surface water connections often interact with groundwater (Winter and Rosenberry, 1995). Even waters that don’t have apparent surface or ground water connections participate in the hydrologic cycle through evapotranspiration. With more than 10,000 lakes, unpredictableweather patterns including flooding and drought, and complex hydrogeologic features, it is very difficult for us to consider and even more difficult to prove that any of our surface waters are truly isolated. Complicating matters further, the status of a particular water body may change over time as a result of changing climate and altered watersheds. As an alternative, we recommend that the Corps and EPA develop permanent guidance on which waters may be determined to be non-jurisdictional in light of the SWANCC case. In our view, this guidance would be similar to the Joint Memorandum provided as Appendix A of the ANPRM, with the following additions and clarifications: P The SWANCC case did not invalidate the provisions of 33 CFR 328.3(a). Corps and EPA staff should not be required to seek Headquartersapproval to assert jurisdiction based on any of those provisions, as long as the jurisdiction does not rest solely on use of the water by migratory birds. k The guidance should clarify that “adjacent wetlands’’ are to be determined using hydrologic criteria, not geographic proximity. Wetlands that influence the chemical, physical or biological condition of any of the waters listed in 33 CFR 328.3(a)(1-6), either through surface or groundwater connections, should be consideredjurisdictional. k “Tributaries” to waters listed in 33 CFR 328.3(a)(1-4) should be clearly identified as including temporary, intermittent and ephemeral streams, as well as public and private drainage systems. These upper stream reaches (and the wetlands adjacent thereto) are critical for maintaining the chemical, physical and biological integrity of the downstream, traditionally navigable reaches of the nation’s waters. Under this guidance, only a small subset of waters in Minnesota is likely to be determined non­ jurisdictional. Therefore, for Clean Water Act (CWA) regulatory purposes we believe it would be appropriate to presume that a given water body is jurisdictional unless a permit applicant can demonstrate otherwise. The existing wetland regulations and programs in Minnesota have been developed with a clear understanding of which wetlands fall under CWA jurisdiction. A presumption of Federaljurisdiction will help maintain as much clarity as possible and will allow us to continue to efficiently implement state and local level programs. -2- Issue No. 2: “Whether, and, if so, under what circumstances, the factors listed in 33 CFR 328,3(a)(3)(i)-(iii) (Le., use of the water by interstate or foreign travelers for recreational or other purposes, the presence of fish or shellfish that could be taken and sold in interstate commerce, the use of the water for industrial purposes by industries in interstate commerce) or any other factors provide a basis for determining CWA jurisdiction over isolated,.intrastate, non-navigablewaters?” Comments: All of the factors listed above provide a solid basis for asserting CWA jurisdiction over many isolatedwetlands in Minnesota: Waters which are or could be used bv interstate or foreinn travelers for recreational or other purposes. [33 CFR 328.3(a)(3)(i)]. Minnesota is a nationally and internationally recognized destination for outdoor recreational activitv. larnelv due to our water resources (see sidebar). Over $2.7 billion were spent in Minnesotaon ildiife­ related recreation in 2001 (U.S. Dept. Interior 2002). MinnesotaWater Resources and A portion of these expenditures was by 139,000 Tourism non-residents who participated in wildlife watching and specifically visited marshes, wetlands and Minnesota has: swamps (U.S. Dept. Interior 2002). A significant > 11,842 lakes over 10 acres amount of wildlife watching activity involves bird > 10.6 million acres of wetlands watching, much of which is focused on wetland > 69,200 miles of rivers and habitats (see attached brochure on the “Pine to streams Prairie Birding Trail”). In addition, approximately > 589 miles of Wild and Scenic 3,900 non-residents hunted waterfowl in Minnesota Rivers in 2001 (Dexter 2002). Although there is no way > 3.8 million acres available for to determine how much wildlife watching or fishing waterfowl hunting occurs on isolatedwetlands, > 208,000 miles of shoreline there can be no doubt that such wetlands in > 1,967 resorts, campgrounds Minnesota are in fact used by interstatetravelers and motels located on lakes for recreation. Water resources are an important or rivers part of Minnesota’s economy and generate large amounts of revenue for the State. Should rule changes result in the loss (number and type) of water bodies having Clean Water Act protection, water-based activities on lakes, rivers, streams, intermittent streams, isolated and adjacent wetlands could be diminished and the related revenue could decline. Waters from which fish or shellfish are or could be taken and sold in interstate or foreinn commerce. [33 CFR 328.3(a)(3)(ii)]. Thousands of wetland basins in Minnesota are used for commercially raising and harvesting walleyes, suckers and minnows. Walleyes are stocked, raised and harvested from wetland basins for export to other states for stocking and for food. Suckers and minnows are harvestedfrom wetlands and sold as baitfish. Over 50 percent of the bailfish harvested in Minnesota are exported to other states (R. Johannes, MnDNR Div. Fisheries, pers. comm.). A 1992 study determined that the commercial baitfish industry in
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