September 2015 Bar Bulletin
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September 2015 Bar Bulletin

Wetland Regulations in Drought Conditions and a Changing Climate

By Brent Carson


A client recently asked me how the government could call an area on his property a wetland when the ground was bone dry. I explained, with empathy, that wetlands do not always have to be "wet" to be regulated. He shook his head and gave me one of those looks of a client faced with complex environmental regulations that often belie common sense.

Now, with apparent shifts in weather patterns, defining what is and is not a wetland has never been more complicated.

Multi-Jurisdictional Regulation of Wetlands

Federal, state and local laws and regulations independently control work in and near wetlands and other waters. The U.S. Army Corps of Engineers (Corps), with the U.S. Environmental Protection Agency (EPA), regulates the discharge of dredged and fill material into Waters of the United States (WOTUS), including wetlands, through Section 404 of the Federal Clean Water Act (CWA).1

Recently, the Corps and EPA released new regulations to define WOTUS.2 Under the new WOTUS rule, all tributaries are now regulated whether natural, man-altered or man-made, including rivers, streams, canals and certain ditches.3 The WOTUS definition automatically regulates all wetlands within the 100-year floodplain or within 1,500 feet of any tributary.4 Wetlands between 1,500 and 4,000 feet of a tributary may be considered WOTUS if that wetland, together with all other similarly situated waters in the watershed, have a significant nexus to a truly navigable water body (such as Puget Sound) or other interstate water.5

Numerous states and business organizations have sued these agencies for adopting a definition that is too broad and greatly expands CWA jurisdiction beyond the limits authorized by Congress.6 Numerous environmental groups have also sued claiming that the WOTUS rule improperly eliminates important water bodies from federal oversight.7

Washington regulates wetlands through the Washington Department of Ecology (Ecology) under various regulatory programs including Section 4018 of the CWA, the Water Pollution Control Act, Chapter 90.48 RCW,9 and the Shoreline Management Act (SMA), Chapter 90.58 RCW. In addition, every county and city regulates wetlands as critical areas under the Growth Management Act (GMA), RCW 36.70A.060(2).

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