The Supreme Court Wetland Ruling and Your Projects

 Are you wondering how the recent U.S. Supreme Court ruling on wetlands affects your projects in Washington State? The short answer: relatively little.  However, some actions and properties may be considered differently by federal agencies. 

First, some history: on January 9, 2001 the U.S. Supreme Court ruled 5 to 4 that the U.S. Army Corps of Engineers (COE) exceeded its statutory authority in regulating ponds at a project site in northern Illinois.  The court held that regulation of non-navigable, isolated, intrastate waters (including wetlands) based solely on the use of these waters by migratory waterfowl was beyond the scope of the Clean Water Act (CWA).  The court did not address the ability of the COE to regulate wetlands; rather, they determined that in this specific case, the use of the site by migratory waterfowl did not grant the COE authority to take jurisdiction of the ponds or require a permit to alter them.

In response, the office of General Counsel for the U.S. Environmental Protection Agency (EPA) and the Chief Counsel for the COE issued a legal interpretation.  The interpretation stated that although the Court’s ruling provides new limitations on how and in what circumstances the COE and EPA can assert regulatory authority under CWA, the decision was narrowly limited to CWA regulation. The interpretation further states that Federal jurisdiction of isolated, intrastate waters may be possible if their use, degradation, or destruction could affect other “waters of the U.S.,” or where the isolated water is navigable, or if the activity could affect interstate commerce.

It is important to remember that all other traditional waters of the U.S., that is, navigable waters, interstate waters, their tributaries, and wetlands adjacent to each, are still subject to CWA jurisdiction. The landward limit of Federal jurisdiction under Section 404 “must include any adjacent wetlands that form the border of, or are in reasonable proximity to other waters of the U.S., as these wetlands are part of this aquatic system.” Nothing in the Court’s decision alters the COE/EPA authority to determine whether a given aquatic feature is “adjacent” or isolated, and thus whether it is a jurisdictional wetland or other waters of the U.S.

Our conversations with Seattle District COE personnel indicated that, with few exceptions, the COE will continue to regulate most wetlands in the region. Relatively few of the pending permit applications will be affected by the Court’s decision.  Potential exceptions could include water-filled depressions resulting from approved clearing and grading of upland sites and truly “isolated” waters.

Note also that the Court’s decision has no effect on state, local, or tribal wetland regulations.  The Washington Department of Ecology (DOE) has asserted that areas meeting wetland criteria can be regulated under existing state law.  DOE will continue to require compliance with state water quality guidelines for any project that may affect ‘waters of the State.’ 

In addition, the Growth Management Act requires all local jurisdictions (cities and counties) to enact wetland protection ordinances.  While in many instances these regulations are less stringent than COE regulations, they do not change the definition of what a jurisdictional wetland is nor relieve development from following the mitigation sequencing outlined in the State Environmental Policy Act.

The U.S. Supreme Court ruling will have relatively little effect on wetlands regulated within the state of Washington. Although some wetlands (i.e. “isolated”) may no longer be regulated under the Federal CWA, it is still prudent to seek a jurisdictional determination in this regard from the COE prior to filling or causing adverse impacts to wetlands. Permit applicants would also do well to consult with their attorneys before considering such activities.  In addition, state and local wetland regulations still apply. 

Raedeke Associates, Inc. would be pleased to answer any questions you have about wetlands and their regulation; please call us at (206) 525-8122 or email Chris Wright.