July 12, 2001

Isolated wetlands ruling creates confusion

A U.S. Supreme Court decision last January regarding how wetlands are regulated has generated a lot of questions by landowners and developers.

The court ruled that the federal Clean Water Act does not apply to “isolated” wetlands where the only interstate-commerce connection is use by migratory birds.

Isolated wetlands are those that are not adjacent to or connected to a navigable water body, such as a river, lake or marine waters. However, they still perform the same important environmental functions as other wetlands, including recharging streams and aquifers, storing flood waters, filtering pollutants from water, and providing habitat for a host of plants and animals.

Based on the Supreme Court’s ruling, the U.S. Army Corps of Engineers no longer has regulatory oversight of most isolated wetlands. More specifically, landowners no longer need a permit from the Corps to fill in most isolated wetlands - although a Corps permit is still required for isolated wetlands with other interstate-commerce use (e.g., recreation, industrial, etc.) and for wetlands that are connected to a navigable water body.

It is important to remember that the Supreme Court ruling did not change Washington state laws on wetlands.

The state Clean Water Act makes no distinction between types of wetlands. Rather, all “waters of the state” are covered by the law, and isolated wetlands are considered waters of the state.

Thus, the Department of Ecology will continue to regulate isolated wetlands and apply the water quality standards called for in the state law. However, our process for reviewing projects involving isolated wetlands will now be different from the process for other types of wetlands.

It’s not always easy to tell if a wetland is isolated. Landowners who want to develop a wetland should contact the Corps of Engineers and request a formal “jurisdictional determination” to avoid future legal problems and fines.

Any project that calls for filling or altering a wetland still needs to have state certification — including wetlands that the Corps determines are isolated.

The state’s process for reviewing projects that involve isolated wetlands will be different from the 401 Water Quality Certification process that is triggered by the Corps’ 404 permit. Instead, Ecology will use administrative orders to certify acceptable projects. The review standards will remain the same, but the process will be more streamlined, since federal agencies will not be involved in reviewing the projects.

To seek an administrative order for a project that will affect isolated wetlands, landowners should contact the Permit Assistance Center at the Department of Ecology, where staff will guide you through the process.

The phone number is (800) 917-0043 or (360) 407-7037, the e-mail address is ecypac@ecy.wa.gov.

All project proposals will be evaluated in the order received.

Please be aware that the court ruling has increased the workload for Ecology, because Corps staff will no longer confirm wetland delineations and will no longer work with applicants on mitigation plans for isolated wetlands. Nevertheless, Ecology is making every effort to expedite review of all requests.

Additionally, applicants should be aware that all wetlands in Washington also are regulated under the state’s Growth Management Act. Most cities and counties in Washington will require local approval for effects on isolated wetlands.

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Gordon White is manager of the Shorelands & Environmental Assistance Program at the Department of Ecology. For more information check the Web site at www.ecy.wa.gov/programs/sea/pac.

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