Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Wetland Jurisdiction and River Restoration: The little state that can.

There is one question that I have been asked several times a year every year beginning in 2001.  It is–

“How many states have passed legislation to protect
wetlands no longer protected under the Clean Water
Act following SWANCC?”

This is because Congress has not passed legislation to address the loss of protection for isolated wetlands under the Clean Water Act following the SWANCC Supreme Court decision in 2001, nor after Carabell/Rapanos in 2006.  Carabell/Rapanos created additional uncertainties over jurisdiction for small rivers and streams. People are interested in learning how many states have taken action to protect their water.

(Note:  Anyone who is not acquainted with these Supreme Court decisions and subsequent Congressional activity and wants to know more please visit:
Wetland and Legal Issues: Rapanos:
Clean Water Act:

If I just answer the question it’s pretty straightforward:  Wisconsin, Ohio and Indiana passed legislation and North Carolina revised their rules in direct response to SWANCC.  But that’s not nearly all of the story.  It’s only a small piece. States pass legislation addressing wetlands and water resources in various places around the country all of the time.  However, this legislation is not about responding to SWANCC or other national events.  National legislation and programs are important.  However states have many regional and local issues to deal with that have little to do with what’s happening on the national level.  Take, for example, Vermont.

A few years ago a Vermont Supreme Court decision limited the state’s ability to assert jurisdiction over some wetlands in the state.  More specifically it required the state to enter into rule-making every time it wanted to assert jurisdiction over an individual wetland that had been overlooked in the development of wetland maps.   In response the state entered into a lengthy period of meetings, discussions, hearings and public testimony that ended in the passage of Bill H. 447, an Act Relating to Wetlands Protection in May 2009.
The bill not only required inaccurate state wetlands maps to be updated but also mandated better protections for wetlands. Currently the state is completing final rule-making to implement the bill

But that’s not all.  In addition to the Clean Water Act, water quantity, namely floods and hurricanes, is another area of national gridlock.  The country cannot afford the long-term cost of underwriting insurance with taxpayer dollars for communities located in coastal and riverine floodprone areas—particularly when climate change and sea level rise are taken into consideration.  But the alternative, privately financed insurance, would raise insurance rates higher than many are willing or able to pay.

Here again the state of Vermont is making progress.  Following floods in the state a few years ago, the state recognized that it needed to prevent future damages to human health and property from floods.  Structural solutions were too expensive and they didn’t often work.  River restoration and stream stability became the goal.

This past week the state legislature passed No.110 (H763) an act relating to establishment of an agency of natural resources’ river corridor management program.  The legislation simultaneously addresses clean water and flooding problems It establishes a River Corridor Management Program to aid and support municipalities in the adoption of river corridor and buffer bylaws.  The state will aid municipalities by providing river corridor and buffer maps that will identify where municipalities need to provide room for rivers so they can flow in a naturally stable channel.  From a science perspective the goal is to allow rivers in Vermont to achieve fluvial equilibrium. From a practical perspective it means the river will stay within its banks and natural floodplain.

It’s a win for people, for the environment and the economy.

This is why I hesitate whenever asked which states have taken action following SWANCC.  Because states like Vermont have taken a road less traveled that achieves much, much more.

Jeanne Christie

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