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Wetland - Regulations

 
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Federal, state and local authorities regulate wetlands.   As a public works agency, WSDOT must obtain appropriate approvals and permits from regulatory agencies when projects will have unavoidable adverse impacts to wetlands. For guidance on how to obtain permits visit the Federal, State and Local Permits page.  Commonly used wetland regulations, policies and agreements are listed below with short descriptions.   

 

Federal Regulations:

  • National Environmental Policy Act (NEPA) (42 USC Section 4321)
    • Requires that all major actions sponsored, funded, permitted, or approved by federal agencies undergo planning to ensure that environmental considerations such as impacts on wetlands are given due weight in decision-making.
    • Federal implementing regulations are at 23 CFR 771 (FHWA) and 40 CFR 1500-1508 (CEQ). For details on NEPA procedures, see EPM Chapter 400.
    • For additional guidance on NEPA, visit the Permits page.
  • Clean Water Act (Section 404) 33 USC Section 1251 et seq.
    • Administered by the U.S. Army Corps of Engineers.
  • Corps 404(b)(1) Guidelines
    • Covers the placement of fill in waters of the United States, including jurisdictional wetlands.
    • The term “placement of fill” is broadly defined, and includes much more than simply placing soil. For example, mechanized clearing and grading in a jurisdictional wetland is a regulated activity. 
    • The Rapanos Case Decision clarifies Clean Water Act (CWA) jurisdiction following the Supreme Court’s decision in the Rapanos case, identifying situations where a developer may need to obtain a CWA Section 404 permit before completing work in waters of the United States.
    • For guidance on how to obtain these permits visit the Section 404 part of the Permits page.
  • Final Rule on Compensatory Mitigation for Losses of Aquatic Resources
    • This rule clarifies how to provide compensatory mitigation for wetland impacts.
  • Coastal Zone Management Act (CZMA) 16 U.S.C. 1451 et seq.
    • Encourages advancement of national coastal management objectives and assists states to develop and implement management programs.
    • Ecology administers Washington’s Coastal Zone Management (CZM) Program.
    • Cities and counties can develop local management plans that must be approved by Ecology.
    • A notice of consistency with the CZM is required for projects with a federal nexus in Washington’s 15 coastal counties.
    • For guidance on how to obtain these permits visit the Coastal Zone Management part of the Permits page.
  • Protection of Wetlands, Presidential Executive Order 11990
    • Requires federal agencies to minimize the loss or degradation of wetlands and enhance their natural value. WSDOT projects with federal funding are subject to this order.
  • 23 CFR 777 Mitigation of Impacts to Wetlands and Natural Habitat
    • Provides policy and procedures for FHWA to evaluate and mitigate for impacts to wetlands from Federal-aid projects. These policies were required by Executive Order 11990 Protection of Wetlands and DOT Order 5660.1A. Federal Agencies are directed to avoid new construction in wetlands unless:
    • There is no practicable alternative and 
    • The proposed action includes all practicable measures to minimize harm to wetlands. 
       
  • Sections 9 and 10 of the Rivers and Harbors Act of 1899
    • Section 9 requires that construction of bridges and dams in navigable waters be permitted.
    • Section 10 requires a permit for creating obstructions (including excavation and fill activities) to the navigable capacity of waters of the U.S. 
  • Presidential Wetland Policy 1993
    • Interim goal of no overall net loss of the Nation's remaining wetlands
    • Long-term goal of increasing the quality and quantity of the Nation's wetlands resource base. 
  • Reaffirmation of the Presidential Wetland Policy 1995
    • Encourages the use of wetland mitigation banks.

State:

  • State Environmental Policy Act (SEPA)
    • Requires that all major actions sponsored, funded, permitted, or approved by state and/or local agencies undergo planning to ensure environmental considerations such as impacts on wetlands are given due weight in decision-making.
    • State implementing regulations are in WAC 197 11 and WAC 468 12.
    • For details on SEPA procedures, see EPM Chapter 400.
  • Protection of Wetlands, Governor's Executive Order EO 89-10
    • Commits state agencies to the "no net loss" wetland policy of avoiding or minimizing damage to wetlands.
    • Encourages of sensitive site design and planning on a watershed basis.
  • Protection of Wetlands, Governor's Executive Order EO 90-04
    • State agencies are required to promote and support mitigation in the order of decreasing preference from avoidance to compensatory mitigation.
  • Wetlands Protection and Preservation Policy P 2038 
    • This policy directs WSDOT employees to protect and preserve wetlands, to ensure no net loss of wetlands is caused by department actions, and to increase wetland quality and quantity in the long-term.  It replaces Directive 31-12 Protection of Wetlands Action Plan.
  • Shoreline Management Act (SMA)
    • Department of Ecology and local jurisdictions have some authority to regulate wetlands under the Shoreline Management Act.
    • Covers all lands within 200 feet of the Ordinary High Water Mark (OHWM) of all waters within Shorelines jurisdiction, and their "associated wetlands". 
    • For guidance on how to obtain these permits visit the Shoreline Management part of the Permits page.
  • Water Pollution Control Act (90.48 RCW)
    • Primary water pollution law protecting the quality of waters of the state, which include surface and ground waters.
    • WAC 173-201A establishes water quality standards for the state’s surface waters. Ecology issues a 401 certificate of water quality compliance for each CWA Section 404 permit (see above)
    • Addresses all "waters of the state", including Isolated and prior-converted wetlands. Isolated wetlands are regulated by Ecology through administrative orders.
    • For guidance on how to obtain Administrative Orders, visit the Isolated Wetlands part of the Permits page.
  • Wetland Mitigation Banking (RCW 90.84)
    • Directs Ecology to adopt a rule for the certification of wetland mitigation banks.
  • Final Rule on Mitigation Banking (Chapter 173-700 WAC)
    • Ecology’s rule to provide an efficient, predictable framework to certify, operate, and monitor wetland mitigation banks.
  •  Growth Management Act (RCW 36.70A)
    • Local governments are required to use Best Available Science when reviewing and revising their policies and regulations on wetlands.
    • Local governments are required to adopt ordinances that classify, designate, and regulate land use in order to protect critical areas.
    • Critical areas include, among others, wetlands, streams and their buffers.

Local:

  • Shoreline Management Act (Shoreline Master Programs) (RCW 90.58)   
    • Each city and county can adopt a Shoreline Master Program that is based on state guidelines but tailored to the specific geographic, economic and environmental needs of the community.
    • Department of Ecology and local jurisdictions have some authority to regulate wetlands.
    • Covers all lands within 200 feet of the OHWM of all SMA waters, and their "associated wetlands".
  • Growth Management Act (GMA) / Critical Areas Ordinances
    • Local governments regulate wetlands.
    • Regulations vary widely, but generally regulate all wetlands and their associated buffers.

 

Environmental Policies, Executive Orders and Interagency Agreements: