You may not realize it, but you likely live near a wetland area, land that plays a key role in watershed health. Wetlands are nature's water filters, sponges and nurseries. Washington's wetlands protect water quality, reduce flooding, provide aquifer recharge for drinking water and other uses, and provide critical habitat for fish and wildlife.
Today, wetlands cover roughly 938,000 acres, or about 2% of Washington State’s total land area. That area used to be approximately 30% more but has been declining since the late 1700’s, and preserving the remaining acreage is as critical to people as it is to the plants and animal species that call them home.
Yet, with the need for buildable land to accommodate population growth, a natural tension exists between development and environmental conservation because both are equally necessary to support a healthy and thriving community. Wetland mitigation banks play a key role in helping our community balance preservation with progress.
Wetland Regulation in Washington
Due to their delicate nature, local, state, federal, and tribal governments oversee wetland preservation, complying with a series of regulations to determine when and how these areas can be impacted.
Regulatory agencies rely on the following enabling statutes to preserve and protect wetland areas:
● State Environmental Policy Act (SEPA): Review process that helps agency decision-makers, applicants, and the public understand how the entire proposal will affect the environment.
● Shoreline Management Act: Law that “prevents the inherent harm in an uncoordinated and piecemeal development of the state’s shorelines.” Applies to all 38 counties and 250 cities and towns in Washington.
● Growth Management Act: State statute that requires that the fastest-growing cities and counties complete comprehensive plans and development regulations to guide future growth and, if necessary, revise their plans every 10 years to ensure they remain up to date.
● Water Pollution Control Act: Principal law governing pollution control and water quality of the nation’s waterways. Enacted in 1972, this was later amended and became commonly known as the Clean Water Act (CWA).
● Clean Water Act (Section 401): A section of the CWA that focuses on water quality standards that states and tribes use to review and certify projects, with a goal to prevent projects that may compromise water quality.
● Clean Water Act (Section 404): A section of the CWA, administered by the U.S. Army Corps of Engineers, that requires authorization for the discharge of dredged or fill material into all waters of the United States, including wetlands, to preserve the physical and biological integrity of water bodies.
● Rivers and Harbors Act (Section 10): Federal law that prohibits the construction of any bridge, dam, dike, or causeway over or in navigable waterways, which indirectly protects wetlands. It is the oldest Federal environmental law in the U.S.
Local Government Oversight of Wetland Areas
When it comes to wetland protection and regulation, Washington State’s Growth Management Act (GMA) authorizes cities and counties to review, evaluate, and manage their wetland areas using critical area ordinances (CAO) consistent with the federal and state statues. CAO’s limit development in environmentally sensitive areas, providing regulations with the intent to reduce conflicts and provide predictability and consistency for property owners, county staff, and consultants.
According to the Department of Ecology, “Local governments develop comprehensive land-use plans that ensure future growth meets the needs of the community while protecting natural resources and the environment. These plans often include provisions for wetlands and aquatic resources. Shorelines and their associated wetlands are protected through locally administered shoreline master programs under the Shoreline Management Act.”
State Government Oversight of Wetland Areas
The Department of Ecology (DOE) is the lead agency for wetland management in Washington State with city and county planning departments managing development requests at the local level. The DOE regulates wetlands under the Water Pollution Control Act and the Shoreline Management Act. Anytime a development request is made that will impact a wetland area, the DOE follows the SEPA process to identify potential wetland-related concerns early in the environmental review and permitting process.
Federal Government Oversight of Wetland Areas
From a federal perspective, the U.S. Army Corps of Engineers follows Section 401 of the CWA to determine a project’s effects on wetlands and waters, and the Rivers and Harbors Act’s Section 10 to approve work involving navigable waters or projects affecting the condition of these waters.
The Corps and the Environmental Protection Agency (EPA) follow CWA Section 404 to jointly determine jurisdiction for waters across the U.S., including wetlands, regarding authorization to discharge dredged or fill material. The EPA also develops the environmental assessment criteria that the Corps uses to issue permits and writes water quality certifications on tribal lands where the tribal governments do not yet have the authority to administer CWA Section 401.
Tribal Government Oversight of Wetland Areas
Washington State is home to 29 federally recognized Indian tribes, and both tribal and federal regulations may apply when it comes to managing natural resources on reservations and nearby federal trust lands.
Tribal governments work with the EPA, the Army Corps of Engineers, the Bureau of Indian Affairs, and landowners to manage wetlands located within reservations or on tribal lands if projects are deemed to affect reservation land, trust lands, cultural resources, traditional cultural properties, and tribal “usual and accustomed” areas beyond reservation boundaries. Each tribal government may have adopted their own regulations to protect wetlands and waters depending on the tribal resources and their reservation.
Balancing Conservation and Communities
The Affordable Housing Advisory Board reports that Washington needs to add over a million new homes within the next 20 years to meet current needs and accommodate population growth, requiring buildable land—and lots of it. Some wetland areas can be used to support this growth because when it comes to wetland classifications, not all wetland areas are equally valuable.
Wetlands are classified according to their resources and function. Some wetland areas are crucial to the environment and cannot be disturbed without the potential to cause irreversible damage. These resource-rich lands are known as Category I and II wetlands.
Other wetland areas that are designated Category III or IV provide fewer resources, less function, and can generally be recreated in another location.
Here are Western Washington wetland categories as defined by Thomas Hruby, PhD:
● Category I wetlands are of exceptional value in terms of protecting water quality, storing flood and stormwater, and/or providing habitat for fish, shellfish, birds, plants, algae and invertebrates. These are rare wetland communities that often provide documented habitat for sensitive, threatened, or endangered species, and/or have other attributes that are very difficult or impossible to replace if altered. Buffer 50-300 feet.
● Category II wetlands have significant value based on their function. They do not meet the criteria for Category I rating but occur infrequently and have qualities that are difficult to replace if altered. Buffer 50-275 feet.
● Category III wetlands have important resource value. They occur commonly in Whatcom County. Buffer 50-150 feet.
● Category IV wetlands are of limited resource value. They typically have vegetation of similar age and class, lack of special habitat features, and/or are isolated or disconnected from other aquatic systems or high-quality upland habitats. Buffer 25-50 feet.
When impacting a wetland is unavoidable due to the necessity of widening a road, building infrastructure or supporting new housing, the DOE establishes mitigation sequencing rules that requires the community to follow a mitigation process so there is no net loss to the environment. It’s important to note that typically housing, roads, or other infrastructure are only permitted on Category III and IV wetland areas with little ecological value.
The Mitigation Process
In Washington, any entity that proposes action for housing or other infrastructure that will impact a wetland area must follow a mitigation sequence – which is a process that ensures that lost wetland functions will be recreated or enhanced so there is, again, a no net loss to the environment. Only then will regulatory agencies consider a proposal. Found on the City of Bellingham’s website, the following mitigation sequencing steps are enforced through state and local rules.
1. Avoiding the impact altogether by not taking a certain action or parts of an action
2. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts
3. Rectifying the impact by repairing, rehabilitating, or restoring the affected environment
4. Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action
5. Compensating for the impact by replacing, enhancing, or providing substitute resources or environments
6. Monitoring the impact and taking appropriate corrective measures
After completing steps 1 through 4, if a project still has unavoidable impacts, the project proponent must provide mitigation plans. Any proposed wetlands mitigation plan must go through rigorous review and meet regulatory requirements before it can be implemented, including obtaining permits and demonstrating that the proposal actively avoids or minimizes impacts on the acreage involved.
Mitigation plans are unique to the project and its impact on the property but typically consist of planting native vegetation, wetland creation, wetland enhancement, wetland buffer enhancement, stream buffer enhancement, and more. This type of mitigation is called permittee-responsible compensatory mitigation (PRM) – meaning the permit-holder/landowner is responsible for the planning, implementation, and success of the environmental-offset project.
However, individually managed PRM projects can be costly and have low success rates, particularly if the permit holder is not an expert in wetland habitat restoration. An alternative to permittee-responsible mitigation are wetland mitigation banks. Conservationists generally prefer mitigation banks for their increased resources and ability to more effectively protect the wetland and its habitat. Additionally, developers appreciate the streamlined permitting processes and working with mitigation banks.
Introduction to Wetland Mitigation Banking
According to the Department of Ecology, “A wetland mitigation bank is a site where wetlands are restored, created, enhanced, or in exceptional circumstances preserved for the express purpose of providing compensatory mitigation in advance of unavoidable impacts to wetlands or other aquatic resources. Banks provide the option of purchasing credits to offset the unavoidable impacts of a project.”
Fundamental to wetland mitigation banking is to conserve and restore wetland ecosystems by helping to avoid a piece-meal, siloed process in which a landowner works on one wetland area at a time. By considering the environmental impacts on multiple wetland areas as a whole, a mitigation bank can best assess the ecological impacts of development and better plan for, preserve, conserve, and maintain the wetland areas for optimal outcomes while ensuring all efforts meet regulatory compliance.
Introduced in the early 1980s and more widely adopted in the 1990s, mitigation banks act as the keepers of the wetlands. These banks often work with private equity – not taxpayer dollars – to preserve and restore ecosystems, offering “credits” to those undertaking commercial projects involving wetlands. Similar to a bank that loans cash to its clients, a mitigation bank sells credits to those who seek to develop wetland acreage with unavoidable impacts. Landowners within a service area of a wetland mitigation bank can purchase credits according to how the mitigation bank assesses the proposed development’s impact on the ecosystem.
Rather than PRM projects preserving smaller wetland sites that may have little function or ecological value, a mitigation bank restores larger, consolidated pieces of eco-rich land in a cost-effective way, creating more cohesion and greater ecological outcomes. Essentially, mitigation banking addresses the environmental challenges posed by a project, offering an innovative and effective approach to wetland conservation while more efficiently and successfully managing land use required for economic growth.
The Ecological Restoration Business Association (ERBA), established in 1998, serves as the conservation industry’s voice in Washington, D.C., and describes mitigation banking as “highly regulated enterprises that have historically been proven to deliver the highest quality, most reliable offset to environmental impacts...and a private investment into 'green infrastructure' to help offset the impacts associated with economic growth."
To create a mitigation bank, a government agency, corporation, nonprofit organization, or other entity enters into a formal agreement with a regulatory agency like Washington State’s Department of Ecology and undergoes a review process that typically takes 5 -10 years and requires approval from the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA). Others also review the proposal, including federal, state, and local organizations and the general public.
The city of Bellingham has proposed the Bear Creek Wetland Mitigation Bank, which encompasses four separate locations totaling 608 acres. This project was proposed in 2012 and is now proceeding toward major project permit applications.
A 2022 article, written by Kai Uyehara and published in the Salish Current, highlights some of the concerns the community has about Bellingham’s proposed wetland mitigation bank, such as reduced biodiversity. However, it’s important to emphasize the mitigation bank will not replace the required mitigation sequencing process of projects in critical areas, nor will it replace the option of permittee-responsible mitigation: the bank can just be a better alternative to it.
Wetland Mitigation Bank Successes
In 2009, the Lummi Nation was the first U.S. Tribal Government to establish a commercial habitat and wetland mitigation bank in the country, stating, “For over 20 years wetland professionals have agreed that after mitigation sequencing (avoid, minimize, mitigate) has occurred, mitigation banking is a viable and potentially a more desirable alternative to conventional on-site mitigation of unavoidable wetland impacts associated with development.”
The Lummi Nation Wetland and Habitat Bank became operational in 2012 and has proven to successfully protect tribal resources including salmon and shellfish while generating approximately $2M.
The 396 acre Nookachamps Wetlands Mitigation Bank was also established in 2009 along Washington State’s Skagit River. Since 2011, it has successfully enhanced some of the degradation of habitats existing within the area. It reestablished:
● Several floodplain wetlands and forests;
● Open water channels; and
● Riparian habitats housing moose, deer, amphibians, songbirds, and dragonflies.
Other wetlands mitigation banks in Washington include Hood Canal, designed to preserve intact feeder bluffs, minimize the loss of marine riparian vegetation, acquire land for preservation, and minimize water quality and quantity impacts associated with development and timber harvest activities; and North Fork Newaukum in Lewis County, with a goal to improve water quality, augment summer flows, and create fish and wildlife habitat in the Newaukum River and Upper Chehalis River Basin.
Mitigation Banks: Providing an Ecological Balance
From flood control and storm damage reduction to recreation and tourism, conserving and protecting wetlands is crucial for balancing ecosystems. Mitigation banking is an important component to addressing the tension between community growth and environmental impact and can be considered a compromise between wetland preservation and the land use that is critical to support housing and infrastructure.
As the community faces a shortage of buildable land, wetland mitigation banks enable building on otherwise unusable acreage under the guidance and oversight of environmental experts who will restore and improve local wetlands and habitats—resulting in a more effective, no-net environmental loss. Utilizing mitigation banks’ strong regulatory oversight and continual monitoring serves to meet ecological objectives by increasing critical protections for our local wetland species.
By involving ecological expertise, demanding high standards, and requiring effective wetland monitoring and maintenance, wetland mitigation banks provide a way to balance population growth while preserving Whatcom County’s rich biodiversity.
About
Housing for Bellingham is a community resource that works to explain the fundamental processes and terminology associated with housing related decisions in an effort to inform the public. When we understand land use planning processes, we can make more informed decisions about housing and land use policies in our community.
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