Washington working to blunt Supreme Court wetlands ruling


April 18, 2024

The Washington Department of Ecology is seeking more funding to regulate activities that affect seasonal creeks, flooded fields and other landlocked wetlands that the U.S. Supreme Court removed from federal jurisdiction. The high court’s Sackett decision last year took federal oversight away from about 450,000 acres, or about half the wetlands in Washington, Ecology estimates. Federal oversight was overreaching and a burden to landowners, according to the majority opinion. The ruling limited the federal Clean Water Act to wetlands that are visibly connected to permanent bodies of water. Rather than live with the ruling, Ecology will stick with the pre-Sackett regulations and approve or reject activities in areas separated by land from water bodies but flooded often enough to have vegetation adapted to soaked soil. Gov. Jay Inslee’s 2024 budget proposal requests $2.4 million for Ecology to do the reviews and write rules for a new state-issued dredge-and-fill permit. Agriculture consultant John Stuhlmiller, former Washington Farm Bureau CEO, said Dec. 26 that Ecology’s plan will nullify the Sackett decision in Washington. The state’s oversight of wetlands will retain shortcomings the Supreme Court tried to remedy, he said, including the uncertainty landowners face in knowing what is and isn’t a regulated wetland. “It should be absolutely clear so you don’t make criminals out of somebody,” Stuhlmiller said. “The decision should have been met with a careful scientific analysis, but it was met with a political analysis,” he said. “Ecology said, ‘We’re stronger than the feds,’ and just bulled ahead.” Ecology claims authority to regulate wetlands under the state Water Pollution Control Act. Ecology has a clear responsibility to protect wetlands, department spokesman Andrew Wineke said in an email. Ecology does not have a map of wetlands and based its estimate that 50% will no longer be federally protected on a nationwide model developed by St. Mary’s University of Minnesota. The U.S. Fish and Wildlife Service maps the approximate location of wetlands. The maps are not detailed enough to identify specific areas as a wetland, Wineke said. Until Ecology writes rules for a fill-and-dredge permit, it will issue administrative orders to approve projects, he said.


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