Federal, state, and local wetland regulations can vary in how they apply to different types of wetlands as well as the different types of activities allowed to affect wetlands. At the federal level, the Clean Water Act applies to "waters of the United States." The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) are the agencies generally charged with protecting "waters of the United States" — including wetlands.
In 2019, the Trump administration began reviewing and potentially revising what the Corps and EPA consider to be "waters of the United States" that are protected under federal law. Step One of rulemaking (repeal of the 2015 Clean Water Rule) becomes effective Dec. 23, 2019. With this rule, the federal agencies will implement the pre-2015 Rule regulations as informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice. More information about the federal rulemaking proposal is on EPA's webpage.
We understand ongoing litigation and the federal rule-making process may be creating uncertainty for some landowners and the general public. If you have a specific question about a jurisdictional determination or the federal permit process, please contact a local U.S. Army Corps of Engineers District office or the EPA at CWAwotus@epa.gov.
Regardless what the federal government determines, wetlands meeting Washington's definition of waters of the state will still be regulated by state and local agencies.
Federal rulemaking (Step 2) to redefine 'waters of the United States'
On April 15, 2019, we sent our official response — a letter on behalf of five state agencies and our own detailed comments — opposing the Trump administration's proposal to redefine the scope of "waters of the United States" that would be protected and regulated under the federal Clean Water Act. The 1972 statute is the primary federal law governing water pollution and instrumental in protecting Washington's water.
We cannot support the draft federal rule proposed jointly by EPA and the Corps because it would eliminate federal protection for classes of streams and wetlands Washingtonians highly value, including:
- Wetlands behind dikes and irrigation canals.
- Wetlands lacking a surface connection to a stream or nearby marine waters.
- Streams that only flow in response to rainfall.
These waters are critical because they help filter and clean drinking water, control flooding and erosion, and provide places for boating, fishing, and other recreation activities. They also offer habitat and refuge for fish and wildlife, especially salmon that southern Puget Sound resident orca whales need to survive.
In Thurston County alone, we estimate the federal proposal would remove between 2,000 and 11,000 acres of wetlands from federal protection.
State water quality at risk under flawed federal approach
The federal government said it wants to reduce the scope of federally-protected waters to increase predictability and consistency when implementing the Clean Water Act. We find this approach flawed since it would put state water quality at risk by rolling back federal protection to cover only certain stream reaches instead of the entire water body.
The rule also would create an artificial divide between state and federal waters, allowing the federal government to shirk its required responsibility under the Clean Water Act to protect the physical, chemical, and biological integrity of the nation’s waters. It also ignores years of science that they evaluated for the 2015 Clean Water Rule (the Connectivity Report). That report determined that Washington’s surface streams and wetlands are often directly connected to underground sources of water. Surface water pollution puts our drinking water aquifers at risk.
Washington would need a new permitting program
If put in place, the federal proposal would mean that the Washington Legislature would need to establish a new state permitting program for public and private developers seeking to build projects that would impact wetlands or other state waters.
We now work in partnership with the U.S. Army Corps of Engineers, employing state authority under the Clean Water Act to evaluate proposals in a streamlined, project-by-project fashion. A new state program will need legal authority and funding to establish, likely delaying projects and costing businesses and governments more time and money in the interim.
The draft rule on redefining "waters of the United States" is currently going through the federal rule-making process and a final rule is planned to be published in January 2020.