Region 5

Edward B. Witte
Foley & Lardner
Milwaukee, Wisconsin

Wisconsin Senate Passes Bill to Recoup Jurisdiction over "Isolated Wetlands"

The Wisconsin Senate passed a bill on February 13, 2001 to assert state control over wetlands that were the subject of the January 9, 2001 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC) decision. Wisconsin, like many other states, has operated under a CWA Section 401 Water Quality Certification regime, reviewing permits issued by the Corps on a case by case basis.

The state’s reaction to the SWANCCdecision was swift, as the Wisconsin Department of Natural Resources’ (WDNR) secretary’s office promptly expressed concern over the loss of authority over as much as 4.2 million acres of "isolated wetlands" in Wisconsin. The bill passed by the Senate creates a defined category of wetlands known as "nonfederal wetland" by specific reference, in the definition, to the SWANCC case. Until, and if, the Corps regains jurisdiction over "isolated wetlands," the proposed legislation would empower the WDNR to review proposals to conduct activities in "nonfederal wetlands" pursuant to the state’s water quality certification program, set forth in Chapter NR 103 of the Wisconsin Administrative Code. The bill also provides that the law becomes effective on the date of passage, in spite of the delay that will occur to draft and implement regulations for the law.

The hurried effort to craft the legislation also comes in the midst of the WDNR’s preparation of compensatory mitigation provisions to be incorporated into NR 103. These first ever mitigation rules for Wisconsin are proposed to be effective August 1, 2001.

Ohio Considers Emergency Measure to Regulate SWANCC Wetlands

The Ohio Environmental Protection Agency (OEPA) also has taken swift action in response to the SWANCC decision. Under an emergency measure drafted by OEPA, developers who want to alter ponds, marshes and other isolated wetlands would need to apply for a temporary permit requiring them to wait 90 days before starting the project. The measure, which must be signed by Gov. Taft, is designed to give the agency time to establish a regulatory process to address Corps’ loss of control over "isolated wetlands."

Under Ohio law, and in accordance with the federal Clean Water Act, developers seeking a water quality permit from the Corps to launch projects on isolated wetlands had first been required to obtain a permit from the state. OEPA insists it still is obligated to review the filling or dredging of landlocked wetlands. However, some developers argue that with the federal regulatory system invalidated, developments should be able to move forward without a permit until a clear regulatory policy is in place. The stakes are high. OEPA spokesperson Kara Allison estimates that as much as 40% of the wetlands in Ohio are considered landlocked wetlands.

Source: Crain’s Clev. Bus., Feb. 19, 2001.

Indiana Drafts Water Quality Certification Standards

The Indiana Department of Environmental Management (IDEM) is soliciting public comment on amendments to rules to establish water quality standards for wetlands and new rules to establish procedures for reviewing federally permitted or licensed activities that require certification under Section 401 of the federal Clean Water Act. These activities include those regulated by the U.S. Corps of Engineers under Section 404 of the Clean Water Act and by the Federal Energy Regulatory Commission, such as licenses for hydroelectric facilities. Indiana is required by federal law to establish water quality standards for all waters of the state including wetlands. This rulemaking will amend rules in 327 IAC 2 to establish specific water quality standards for Indiana’s wetlands.

Further information about the IDEM rulemaking is available at the source of this update: www.state.in.us/idem/planbr/401/rule_and_procedures.html.