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 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.
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, 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
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
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.
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
Delaware’s Department of Natural Resources and Environmental
(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.
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
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
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
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
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.