We oppose federal proposal to redefine 'waters of the United States'

Salmon leaping from the water at Port of Tacoma's Upper Clear Creek wetland mitigation site. Washington's streams and wetlands offer important habitat for fish and wildlife while helping clean our water, and control flooding and erosion.

Today, we sent our official response to the Trump administration opposing its draft rule to redefine the scope of “waters of the United States” that would be protected and regulated under the 1972 federal Clean Water Act. As the primary federal law governing water pollution, the Clean Water Act is instrumental in protecting Washington’s water.

We are gravely concerned the draft rule, proposed jointly by EPA and U.S. Army Corps of Engineers, will eliminate federal protection for classes of streams and wetlands highly valued by Washingtonians. In Thurston County alone, we estimate the federal proposal would remove between 2,000 and 11,000 acres of wetlands from federal protection.

The rule change, if finalized, would remove federal protections for:

• Streams in upland ditches as well as water in most ditches.
• Wetlands behind dikes with no surface connection to a river, as well as wetlands along irrigation canals.
• Wetlands close to, but not touching, marine waters.
• Streams that only flow in response to rainfall—also called “ephemeral” streams.
• Wetlands in a floodplain that receive floodwaters on a less than annual basis and lack a surface connection to a stream.
• Prior converted croplands, wetlands under agricultural production when they are proposed to be changed to non-agricultural uses.

Healthy streams and wetlands = healthy Washington

These waters help our state maintain a healthy, safe and vibrant economy and environment by:

• Providing and supporting important habitat for salmon that southern Puget Sound resident orca need to survive.
• Filtering and cleaning our drinking water.
• Controlling flooding and erosion.
• Offering habitat and refuge for fish and other wildlife.
• Providing places for boating, fishing, and other recreation activities.

Coweeman River Wetland and Conservation Bank in Cowlitz County, a year after being established in 2016. Wetland mitigation banks help private and public developers restore and preserve wetland functions in river basins across the state. 

Federal proposal too flawed to be adopted

According to the proposed rule language, the federal government is seeking to change the definition of waters of the United States to increase the predictability and consistency when implementing the Clean Water Act and reduce the scope of federally-protected waters.

We find this approach to be significantly flawed because it:

• Would put Washington’s water quality at risk. Federal protection would be rolled back to cover only certain stream reaches instead of the entire water body.
• Creates an artificial divide between state and federal waters, allowing the federal government to shirk its responsibility to protect the physical, chemical, and biological integrity of the nation's waters under the federal Clean Water Act.
• Ignores years of science, upheld by numerous court decisions, that Washington’s surface streams and wetlands are often directly connected to underground sources of water. Surface water pollution puts state drinking water aquifers at risk.
• Creates a need for a new state permitting program. Public and private developers seeking to build projects that would impact certain classes of wetlands now file a single state/federal application. We currently apply state requirements as part of the federal permitting process. Without federal involvement, the state would need legislation to create and fund its own wetland permitting process. Without such a program, projects could experience delays and economic losses. 

Washingtonians expect their waters to be protected

Time and again, Washingtonians have been clear about the importance of protecting, restoring, and conserving state waters and wetlands. They demand safe drinking water, expect healthy places for recreation, and support a vibrant natural resource economy supported by clean water.

Our state laws reflect this mandate:

• Water Pollution Control Act, passed by the state legislature in 1945, outlines the state’s interest in controlling pollution and protecting water quality in all state waters and wetlands.
• Shoreline Management Act, passed by voter referendum in 1972, protects and manages development along the state’s 28,000 miles of stream, river, lake, and marine shorelines.
• Growth Management Act, passed by lawmakers in 1990. Under the act, local governments protect all wetlands and streams by adopting critical areas ordinances.

Rule would negatively reshape relationship with federal partners

Chehalis River swamps Centralia and Chehalis during 2007 catastrophic flood.

The proposal to change the definition of waters of the United States will need to go through the federal rule-making process before it can take effect. We are concerned the rule could:

• Significantly reshape the working relationship we have with the U.S. Army Corps of Engineers and EPA to help protect our waters.
• Sow confusion among local communities seeking help from our federal partners.
• Mean more work for communities and state agency partners like us.
• Result in accidental violations of local and state laws.

While we don’t know what the final changes will be to the federal proposal, we will continue to protect all Washington waters and wetlands from being lost or degraded.

By Curt Hart, Ecology communications

How and why we regulate the use of pesticides in water

By Sandy Howard, Water Quality Program communications manager

We know you care about the chemicals that may be finding their way into the environment.

Photo credit: Tristan Hervouet via freeimages

So do we.

That’s why we are focusing on identifying priority toxic chemicals and developing plans to reduce or eliminate their use, or to mitigate their impacts on people and the environment.

Our Water Quality Program has goals to prevent and reduce water pollution and to clean up polluted waters.

To make this work, we engage you to help protect and restore Washington’s lakes, rivers and marine waters.

Clean Water Act protections

When we come to work each day, our Water Quality Program compass is water quality – both in protecting high quality waters and cleaning up polluted waters.

The federal Clean Water Act and the state’s Water Pollution Control Act give us the basic structure of the regulatory programs we use to clean up and protect the health of our waters. And under the act, a water quality permit program is one of our key pollution gatekeepers.

Permits limit pollution

Under our Clean Water Act authorities, a water quality permit is a legal tool that authorizes and limits a pollution discharge.
For example, we permit discharges from large industrial facilities and we permit discharges from wastewater treatment plants. Our Clean Water Act permits allow the discharge of a limited amount of pollution and we recognize that the limited amount of pollution may have impacts. Our permits strive to minimize those impacts.

Protecting the benefits our waters provide

Some people may be surprised to know that both the Clean Water Act and state law allows the use of aquatic pesticides for the purpose of protecting the benefits that our waters provide.

Aquatic pesticides, when used carefully under a water quality permit, can protect water used for domestic, industrial and agricultural purposes, and for livestock, shellfish harvesting, habitat, commerce and navigation, and boating.
Pesticides are used to control:

• disease-carrying mosquitoes
• weeds and algae in irrigation systems
• invasive and noxious weeds in parks and lakes
• non-native fish

By controlling mosquitoes, we protect public health from diseases. By controlling weeds and algae, we conserve water, protect public safety, and provide a benefit to agricultural production. By controlling noxious weeds, we help protect the environment, public health, and recreation.

Controlling noxious weeds

Twenty years ago, the Legislature clarified that we must allow the use of aquatic pesticides to control noxious weeds when the uses meet our stringent environmental protections.

With strategic and permitted use of aquatic pesticides, we have dramatically reduced infestations of the noxious weed Spartina from more than 9,000 acres in 2003 to around 8 acres today.

Pesticide regulation 101

Pesticides are registered by the U.S. Environmental Protection Agency, which must follow federal pesticide laws. EPA’s lengthy registration process includes health and environmental studies that look at short-term, long-term, and indirect effects.

State law requires that pesticides used in Washington be registered by the state Department of Agriculture. WSDA reviews the EPA registration to determine if there are any state specific concerns, such as endangered species, or drinking water concerns. If there are concerns, WSDA may deny the registration and the pesticide may not be used in Washington. Or they may include it in the restricted-use category, which is the case for all aquatic labeled pesticides. To buy, sell or use aquatic labeled or other restricted use pesticides in Washington, you need to have a license from WSDA.

Pesticide labels

Pesticide labels provide important protections, too. EPA approves the labels and it is illegal to use a pesticide in a way that is inconsistent with the label. However, different manufacturers of the same pesticide may seek approval for different uses – resulting in different labels and therefore different approved uses for the same pesticide.

Before pesticides can be used in or near water, the label needs to specifically state it's OK.

Ecology provides third layer of environmental protection

Photo credit: Laurivo via freeimages

The Department of Ecology provides a third layer of regulation for the use of aquatic pesticides through a water quality permit.
Our state has a strong permitting program to carefully control and manage pesticide use in and around water.  Our program covers the water uses. It does not cover dry land, agricultural uses of pesticides.

Additional protections added by permit

When we consider issuing an aquatic pesticide permit, we evaluate and require environmental protections in addition to EPA and WSDA requirements. Additional conditions may include:

• when, where, how and the amount of aquatic pesticides can be applied
• specific monitoring and reporting to evaluate compliance

We also require public notification.

Aquatic pesticide permits contain restrictions, protections

Ecology’s pesticide permits contain a lot of detailed requirements. They set limits to the geographic area where the pesticide may be used. They set restrictions on the pesticides that may be used, opting for the least toxic products that are available. They require public notifications. They limit the timing of pesticide use to protect other plants or animals, such as young salmon. They require post-treatment monitoring to ensure the pesticide was applied correctly. Pesticide applicators must submit reports to us to show that permit requirements were met.

Permit process open to public

Our permitting process is open and transparent to the public. You can review draft permits and give us feedback at different times during our permit development process.  We receive important feedback from you that helps us shape a final permit.

Stay informed

We hope you find this information to be helpful. We invite you to sign up to receive our email notifications about aquatic pesticide permit applications in Washington.