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 2017, 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) became effective Dec. 23, 2019. With this rule, the federal agencies are implementing 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 January 23,2020, the Corps and EPA released their final rule to redefine "waters if the United States." The rule has not yet been published in the Federal Register. The final rule is similar to the proposed rule that we responded to in opposition. 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 do not support the final federal rule issued jointly by EPA and the Corps because it eliminates federal protection for classes of streams and wetlands Washingtonians highly value, including:
- Wetlands behind dikes and along 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 ephemeral streams and many wetlands formerly considered adjacent waters.
The rule also creates 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 drinking water aquifers at risk.