Federal wetland regulations

Flock of mallard ducks feeding in wetland in Skagit County.

Photo credit: Brent M., Creative Common.

The 1972 federal Clean Water Act affords protections to “waters of the United States," governs water pollution, and helps protect Washington water. Our federal partners at the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) protect waters of the United States, including wetlands.

 


Federal rollbacks mean protecting water quality in wetlands falls to state

In April 2020, the Corps and EPA issued the Navigable Waters Protection Rule changing the definition of “waters of the United States” (WOTUS) subject to federal water quality protections. The federal rollback excludes many wetlands, streams that flow in response to rainfall, and other water bodies from federal regulatory oversight. The rule took effect June 22, 2020. For more details, see Ecology Focus on: Waters of the United States.

With federal agencies retreating, the responsibility for protecting the environmental health of these waters falls to states. In Washington, wetlands, streams, and other water bodies are protected under the state’s 1945 Water Pollution Control Act, 1972 Shoreline Management Act, 1990 Growth Management Act, and other environmental regulations. Find state wetland regulation & permitting resources.

Standing water pools in between dense wetland emergent vegetation.

These interdunal wetlands on the Long Beach peninsula are vital habitat for migrating birds and other animals. Under new rules, these water bodies would be excluded from federal regulations.

Federal rollbacks to adversely affect Washington

While these waters are protected under Washington law, the federal rollbacks will adversely affect the state. For years, we worked closely with the Corps of Engineers using the authority under Section 401 and Section 404 of the Clean Water Act. When projects fell outside the Corps’ purview, we issued administrative orders to address wetlands impacts, and identified mitigation and regulatory requirements.

The new federal rule means thousands of Washington wetlands no longer qualify for federal protection; therefore, those projects will no longer be able to be authorized under the Corps’ nationwide permits. The federal government’s retreat from Clean Water Act permitting shifts an unprecedented burden to Washington, creating uncertainty by putting the development community at risk of violating state water quality protections without state authorization.

Evaluating the best path forward

We are considering all options to ensure state waters remain protected. We are reaching out to local governments and affected industry groups as we evaluate the best path forward.

Other implications of new federal rule

In Washington, when an oil spill or hazardous material release reaches waters of the United States, we work with federal agency partners to respond to the environmental emergency. Our federal partners provide technical assistance and funding to help respond to and clean up the spill.

EPA and U.S. Coast Guard’s jurisdiction to respond to spills in water is based on the definition of waters of the United States. Federal agencies will not offer expertise, deploy resources or provide financial support for spills not within their jurisdiction. This places an increased response and cost burden on the state while putting Washington waters at greater environmental risk.