Great Lakes Article:

From the National Wildlife Federation
December 20, 2001

Here is some information we have compiled on how states are reacting to the change in protected status under the Clean Water Act, of certain "isolated" waters.  If you have information on other states, or updates or corrections, please send them to us.

Wisconsin

Wisconsin responded quickly to SWANCC, enacting new legislation in May 2001 extending its pre-existing water quality certification program to “non-federal” wetlands.  Wisconsin has had for some time a strong wetlands permitting program based on state water quality standards for wetlands and the state’s Clean Water Act §401 water quality certification authority. Under the CWA, whenever a §404 permit is required from the Corps to dredge or fill in wetlands and other waters of the U.S., a state §401 water quality certification or waiver is also required.  Wisconsin exercised its wetlands permitting program through this authority.  However, the SWANCC decision meant that the Corps would no longer be requiring §404 permits in non-navigable, isolated, intrastate waters.  Absent a §404 permit, Wisconsin could not exercise its §401 certification authority.  Wisconsin’ s new law extends the state’s certification authority to “non-federal wetlands,”  those wetlands over which the Corps no longer takes §404 jurisdiction based on the SWANCC decision.

Indiana

Like Wisconsin, Indiana’s wetlands regulatory program is tied to its CWA §401 water quality certification authority.  Before the SWANCC decision, Indiana was in the process of incorporating new wetland water quality standards, procedures, and criteria for reviewing CWA §404 permitted activities and other federally permitted and licensed activities requiring a CWA §401 state water quality certification.  Following the SWANCC decision, Indiana proposed to further amend its rules to include procedures and criteria for issuing a state “surface water modification permit” for activities in wetlands that are “waters of the state,” but no longer require a §404 permit or a §401 state water quality certification in the aftermath of SWANCC.  The comment period on the modified proposal was due to expire October 30, 2001.  Indiana’s Department of Environmental Management (IDEM) is committed to moving ahead with its rulemaking (based on a recent news article).

IDEM’s wetland rules are being questioned, however, both in court and in the legislature.  A developer has brought a court action challenging IDEM’ s authority to regulate isolated wetlands.  In addition, a proposal has surfaced in the Indiana Senate to establish a legislative committee to study the state’s wetlands program and policies, apparently with the intent of slowing down and re-examining IDEM’s proposed wetland rules.

Michigan

Michigan, one of only two states nationwide to have actually assumed the Corps’ §404 program, has its own state wetlands protection law independent of its CWA §401 certification authority.  Since 1984, Michigan has been administering the CWA §404 permitting program and its own state wetlands law in tandem.  Unfortunately, the Michigan state wetlands law exempts many truly isolated wetlands.

Before SWANCC, the U.S. EPA and the Michigan Department of Environmental

Quality (DEQ) had identified that this weakness in the state law made the state’s program less stringent than the federal §404 program.  They were in the process of addressing this isolated wetlands gap in the context of EPA’s periodic review of Michigan’s assumption of the federal §404 program. Once SWANCC was issued, however, this difference in isolated wetlands protection between the federal program and the state program largely evaporated.  Post-SWANCC, Michigan’s isolated wetlands were not protected under either federal or state law.  U.S. EPA and Michigan DEQ are still working on measures to improve the clarity and effectiveness of Michigan’s regulation of isolated wetlands, but SWANCC removed a potent incentive for doing so.

Ohio

Like Indiana and Wisconsin, Ohio's wetlands regulatory authority is based on its §401 water quality certification program. State water quality law recognizes all waters. Following SWANCC, the Ohio Environmental Protection Agency and Ohio conservationists held that the state had the authority to issue rules that would create a permitting program for isolated wetlands impacts and that until such rules were in place, no impacts could occur to isolated waters. The regulated community challenged this authority and sought the help of the state legislature. The state legislature quickly passed an isolated wetlands bill which weakened existing protection for isolated wetlands in July 2001. The legislation passed includes a number of provisions that weaken the level of wetlands protection relative to the federal §404 permitting regulations. Most notably, the legislation directs the Ohio EPA to issue a general state isolated wetland permit to expedite review of activities in isolated wetlands. The legislation also categorizes wetlands according to ecological significance, and requires different levels of review and permit criteria based on wetland category and size. The legislation requires coverage under a general state isolated wetland permit, applying level on protection requirements for filling of a category 1 or category 2 isolated wetland of one-half acre or less.

Minnesota

Like Michigan, Minnesota has its own state wetlands law independent of its CWA §401 certification authority.  Ostensibly, Minnesota’s Wetlands Conservation Act (WCA) regulates the full range of wetlands in the state, including isolated wetlands.  However, WCA and its regulations exempt a number of activities that often occur in isolated wetlands.  These exemptions were put in place at least in part because the Corps was requiring a §404 permit for these activities in wetlands, including isolated wetlands.  After SWANCC, the Corps is no longer regulating these activities in isolated wetlands, and Minnesota cannot, leaving a gap in regulation of isolated wetlands.

Minnesota’s Board of Soil and Water Resources (BWSR), which administers WCA, recognizes the need to modify its exemptions and close this gap in regulation of isolated wetlands.  BWSR considered a proposal to make this change in its regulations as part of a broader rule change initiative. However, it has now delayed this proposal for further consideration.

Delaware

Delaware’s Department of Natural Resources and Environmental Control

(DNREC) recognizes the need to act to ensure protection of Delaware's "isolated" wetlands that may no longer be jurisdictional under the CWA after SWANCC.  The DNREC has met with U.S.EPA Region 3 and the Philadelphia District Corps of Engineers to discuss options.  Options discussed range from improved identification and mapping the location of isolated wetlands which are vulnerable, developing new state legislation, amending existing legislation, waiting for a possible federal solution, and developing joint EPA-Corps regional field guidance to minimize the loss of resource. Preliminary estimates suggest that between 20 - 30% of Delaware's freshwater wetlands may be in jeopardy due to the Supreme Court ruling.

Virginia

Until new legislation was enacted in 2000, Virginia depended primarily on its §401 state water quality certification authority to regulate isolated and other non-tidal wetlands.  In 2000, reacting to widespread ditching and draining of wetlands in coastal plain wetlands, the state legislature passed a new law giving the Virginia Department of Environmental Quality (DEQ) new authority over not only isolated wetlands, but dredging in non-tidal wetlands as well, responding to an earlier court decision invalidating the “Tulloch Rule” regulating dredging discharges.  The regulations implementing this new law came into full effect October 1,

2001.

North Carolina

In 1996, North Carolina promulgated wetland water quality standards and procedures applicable to its CWA §401 water quality certifications, especially for Corps §404 permits.  These rules were recently challenged in state court, but upheld by the Court on October 22, 2001.  The state attorney general and the court have also determined that North Carolina’s Environmental Management Commission (EMC) has independent authority to enforce its wetland water quality standards where CWA §401 water quality certifications are not required.

Following SWANCC, the EMC expressly extended these rules to isolated wetlands by promulgating temporary isolated wetland rules that became effective on October 22, 2001.  EMC intends to proceed with making this temporary rule permanent.

South Carolina

South Carolina conservationists advocated for a bill in the SC legislature last session to protect isolated wetlands, but the session adjourned with no action.  The bill had bipartisan sponsors, and conservationists will likely renew their support for such a bill when the legislature convenes again in January.  Meanwhile, the Charleston District of the Corps announced shortly after the SWANCC decision that thousands of SC wetlands were no longer jurisdictional. The state agencies have been trying to at least monitor the resulting wetland loss, and slow it through the state’s stormwater permitting program.  However, an action has been brought in state court challenging the state's authority to protect wetlands through stormwater permitting.

Georgia

The U.S Fish and Wildlife Service estimates 2000 acres of Georgia wetlands are no longer being regulated by the Corps’ Savannah District after

SWANCC. The state agencies do not appear to have any interest in closing this gap in regulation of isolated wetlands.

Florida/ Escambia County

Isolated wetlands in the panhandle counties of Florida are particularly vulnerable because they are exempt from Florida’s own wetland protection law.  The SWANCC decision left these wetlands completely vulnerable to development.  On October 18, 2001, over objections from developers, the Escambia county commissioners adopted an ordinance requiring additional county review of building plans in wetlands, including isolated wetlands.