Wetlands, seasonal streams and other waters in Washington remain protected under state law, and developers still need to apply for review and approval prior to beginning work that could affect these waters.

The Washington Department of Ecology is reiterating those state protections in light of a recent U.S. Supreme Court decision that narrowed federal protections for some wetlands and streams.

That decision, Sackett v. Environmental Protection Agency (EPA), affects how federal agencies review and permit impacts on wetlands nationwide. In Washington, however, the state’s Water Pollution Control Act of 1945 — along with other state laws — has always provided greater protections for these waterbodies than federal regulations, the Department of Ecology said.

“Wetlands are critical for protecting water quality, reducing the impacts of flooding, and providing safe havens for endangered and threatened species,” said Laura Watson, Ecology’s director. “It’s important for people in Washington to know that state laws continue to provide the review and oversight needed to evaluate the impacts of proposed development.”

Ecology has typically worked with federal agencies to streamline environmental permitting for waters under federal oversight. The agency will now use the same process it does for other waters that have state but not federal protections. Ecology is planning to expand the staff and resources it devotes to reviewing development proposals to deal with the additional workload, and will then issue administrative orders to approve or condition a project before work can begin.

“We understand that development is necessary for economic growth and the needs of Washington communities,” said Joenne McGerr, who manages Ecology’s shorelands and environmental assistance program, “but if that work will affect ecologically important areas, we need to understand the potential impacts and what the mitigation options are before giving the go ahead.”

Ecology will add information on the administrative order process and answer common questions on its website soon.

Common questions

Are these new state regulations that were created after the Supreme Court decision limiting federal wetland protections?

Washington law has protected wetlands, seasonal streams and other waterbodies since the Water Pollution Control Act was passed in 1945. Until the May 26, 2023, U.S. Supreme Court decision, the state coordinated with federal agencies to streamline review of projects affecting these waters within the federal permitting process. The Department of Ecology will conduct independent assessments for wetlands and other waters no longer within federal protection.

Will state review stop future development?

The standards for development and mitigation in Washington won’t change. The review and approval process will be different without federal permitting since the Department of Ecology will need to add additional resources to conduct this work and issue an administrative order to allow development.

Why are state wetland protections different than federal regulations?

Wetlands and seasonal streams play critical roles in protecting water quality, mitigating flood risks, and providing habitat for migrating birds and other animals. The state has a broader definition of waters of the state than federal regulations. The federal Clean Water Act protects these areas when the wetland or stream meets the definition of “waters of the United States.” The Supreme Court narrowed that definition, but it didn’t change Washington’s laws or negate the importance of protecting water quality in these waterbodies.

Who do I contact to get approval for work that could impact a wetland?

You can find information on environmental review, Ecology contacts, and other information on Ecology’s Wetland Regulations webpage.

Source: Washington State Department of Ecology