Wetlands remain protected in Washington state despite recent U.S. Supreme Court ruling

Some wetlands, such as these interdunal wetlands on the Long Beach peninsula, will no longer recieve federal protections after a recent U.S. Supreme Court ruling. However, they will still be protected under Washington State law.

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

  1. Readers of this article may be interested to know that the U.S. Army Corps of Engineers has argued in Edmonds that the city’s Stormwater System establishes a connection to navigable waters of the USA. Under this argument, the U.S. Army Corps of Engineers has issued a Nationwide Permit to fill a wetland located in Edmonds.

    My Public Comments for the September 28, 2021 Public Hearing for Stormwater
    Management code (ECDC 18.30) update included the following:

    Does the City’s Stormwater System establish a connection to navigable waters of the USA
    allowing the U.S. Army Corps of Engineers to issue a Nationwide Permit to fill a wetland located
    in Edmonds? Please know the U.S. Army Corps of Engineers has claimed this in the past and
    issued a permit to fill a wetland located in Edmonds. Does Edmonds City Council need to adopt
    legislation making it more difficult for the U.S. Army Corps of Engineers to do this again in the

    No answers were provided.

    I question whether state laws have always provided greater protections for these waterbodies than federal regulations.

  2. I live in Cle Elum on a wetland connected to the Yakima River. I read that harvesting can be done as long as the ground is undisturbed in the process. There are many old large cottonwood trees that were felled and left laying in the green belt wetland. These trees have sprouted along their length since 2007 and are encroaching on the buffer zone and touching the three story buildings and blocking too much daylight. Half the townhomes only have front and back windows so it is an alarming situation. Help would mean a lot to me right now as to what can be done legally and safely for the riparian green belt. Sincerely Greg Pendrey at 235 Sagebrook ln. Cle Elum, WA

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