Ecology plays advisory role in local critical areas ordinances

By Gordon White, Manager, Shorelands and Environmental Assistance Program

Questions occasionally come up about what role Ecology plays in the administration of critical areas ordinances.

The answer is simple: Ecology provides written legal and scientific guidance on wetlands protection, and we provide expert technical assistance and advice at the request of local government. This role is complementary to our separate authority to manage wetlands under several state and federal laws.

We don’t have regulatory authority in local critical areas ordinance issues. We don’t make rulings or issue enforcement actions under local critical areas ordinances. Those tasks are on local government turf.

But we do have professional, trained, experienced, qualified people on our staff who can help local jurisdictions. This service is essential to cities and counties that don’t have the expertise on staff.

One of the tasks cities and counties ask for our help with is reviewing wetland delineation reports. Wetland delineation establishes the location and size of a wetland for the purposes of federal, state and local regulations. Our staff determines if state and federal laws and accepted scientific protocols are followed in the preparation of these reports. According to those laws, wetlands must be delineated based on the 1987 U.S. Army Corps of Engineers delineation manual and applicable regional supplement.

Botany, soils, hydrology all part of wetland science

That brings us to another question that occasionally comes up: Do you need to be a geologist to assess wetlands?

The answer is no. Identifying and delineating a wetland relies on three interrelated areas of science: botany, soils and hydrology. Understanding geology (specifically hydrogeology) is one piece of the puzzle, but does not replace knowledge of wetland vegetation or wetland soils. In 2009, the state Geologist Licensing Board determined that wetland delineation is not the practice of geology. According to board policy, the board will not pursue complaints of unlicensed practice for “collection of groundwater level data for the sole purpose of wetland delineation.”

San Juan County example

Let’s use a recent video circulating the San Juan Islands as an example. The video is about the difficulty a landowner is having coming into compliance with San Juan County’s construction permitting requirements and critical areas ordinance after building a barn in a wetland buffer covered by the county’s critical areas ordinance.

Lacking staff wetland scientists of its own, the county asked Ecology for review of a wetland delineation report in January 2011. In February 2011, Ecology’s Paul Anderson — a wetland specialist certified as a Professional Wetland Scientist through the international Society of Wetland Scientists — provided his expert opinion: The report looked good, and the restoration planting it recommended, followed by professional monitoring to ensure the plantings were providing adequate protection, would have addressed the wetland buffer issues.

Upon receiving a second conflicting wetland report, San Juan County approached Ecology again for technical advice to assist county staff by reviewing and evaluating the reports.

Mr. Anderson again provided his expert opinion (PDF 153 KB): The first report better characterized conditions on the ground, and appropriately applied state and federal law.

The second report was not prepared according to those laws.

For example, the wetlands manual states soil color should be evaluated in the field immediately after the sample is taken. The second report states that the soil samples were taken to a laboratory, dried, and water was then added back before the soil color was evaluated. Trained wetland scientists know that drying and rewetting soil samples alters their colors and renders their interpretation unreliable for purposes of wetland delineation. Other wetland delineation errors were noted in the second report.

From Ecology’s perspective, restoration planting recommended in the first report, followed by a professional assessment to ensure the plantings were providing adequate protection, would have addressed the wetland buffer issues.

It is unfortunate that this problem has caused the landowner so much grief. It is also unfortunate that this case is being used to further an argument about qualifications for performing wetland delineation when that argument has already been resolved by the 2009 state Geologist Licensing Board policy.

More information

For questions and information about wetlands, Ecology's role in administering local critical areas ordinances, or about this case, contact Erik Stockdale, supervisor of Ecology's northwest region wetland staff.

---