Federal rulemaking to redefine 'waters of the United States'

We sent our official response  a letter on behalf of five state agencies and our own detailed comments  on April 15, 2019, opposing a Trump administration 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 rule, proposed jointly by EPA and U.S. Army Corps of Engineers, because it would eliminate federal protection for classes of streams and wetlands that Washingtonians highly value: wetlands behind dikes and irrigation canals, wetlands lacking a surface connection to a stream or nearby marine waters, and streams that only flow in response to rainfall.
Salmon jumping from Upper Clear Creek.

Salmon leaping from the water at Port of Tacoma's Upper Clear Creek wetland mitigation site.

These waters are critical because they help filter and clean drinking water, control flooding and erosion, and provide safe 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.

“Washingtonians demand safe drinking water, expect safe places for recreation, and want vibrant natural resources supported by clean water,” said Ecology Director Maia Bellon. “The federal administration’s attempt to diminish protections of our streams and wetlands puts our waters at risk and harm our economy.”

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 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 require new permitting program

If put in place, the federal proposal would require the Washington Legislature to establish a new state permitting program for public and private developers seeking to build projects that would impact a wetland. 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 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 will still need to go through the federal rule-making process before it can take effect.