Regulating wetlands In Washington – Did Sackett change anything?
On May 25, 2023, the U.S. Supreme Court ruled in the case of Sackett v. Environmental Protection Agency (EPA) that the Clean Water Act extends only to wetlands that have a continuous surface connection with “waters of the United States.” That means a connection with a relatively permanent body of water connected to traditional interstate navigable waters, which makes it difficult to determine where the water ends and the wetland begins. This ruling will affect how the EPA and the U.S. Army Corps of Engineers regulate wetlands but it doesn’t change the way wetlands are regulated in Washington state, including critical areas ordinances
In Washington, wetlands are protected by laws overseen by local, state and federal agencies. The Department of Ecology (Ecology) has the authority to regulate wetlands under the State Water Pollution Control Act (RCW 90.48) and Section 401 of the federal Clean Water Act. Local governments regulate wetlands by working with Ecology in implementing the Shoreline Management Act (RCW 90.58) and through the adoption of critical areas ordinances under the Growth Management Act (RCW 36.70A).
The Growth Management Act (GMA) requires the protection of all wetlands as one of five critical areas defined in RCW 36.70A.030. The GMA wetland definition does not reference the term “waters of the United States.” GMA regulatory authority extends to all wetlands meeting the GMA definition. Washington’s cities and counties continue to have the duty and authority to protect wetlands from development impacts and illegal actions per the referenced state laws.
Please contact Rick Mraz (rmra461@ecy.wa.gov) at Ecology or Scott Kuhta (scott.kuhta@commerce.wa.gov) at Commerce with questions.
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 Model climate guidance is available
Commerce, in partnership with other state agencies, tribes and local planners, developed early climate element planning guidance to help cities and counties address climate change in their comprehensive plans. A climate element can take the form of a single comprehensive plan chapter, or be integrated into several chapters/elements such as housing, transportation and land use.
The early guidance is available online in two formats. Both will continue to be updated through December, at which point guidance will be updated to reflect the new 2023 law on climate change planning (Chapter 228, Laws of 2023; HB 1181):
The early climate element guidance includes flexible approaches to climate planning for any size jurisdiction. You will find guidance for both sub-elements — greenhouse gas reduction and climate resilience — as well as a model chapter with goals and policies that communities can adapt into their comprehensive plans.
Compliance deadlines Cities and counties with a 2025 comprehensive plan periodic update deadline will be the first cities required to have a climate element, and should use the intermediate guidance when it is published in December 2023.
Funding on the way Commerce will provide approximately $30 million in grants over the next six years to support development of climate elements. Information about climate grant programs will be available in the next few weeks.
Please check our Growth Management Services Grants page for details.
Questions? Contact the Commerce Climate Program at 360-725-3114 or GMSClimate@commerce.wa.gov
Commerce to initiate Growth Management Act rulemaking on housing and urban growth areas
Commerce is preparing to update administrative rules for the Growth Management Act (GMA) to reflect new legislation on housing, permitting, development regulations, urban growth areas and rural development.
Growth Management Services (GMS) is actively working with local governments to ensure comprehensive plans and development regulations plan for and accommodate housing affordable to all economic segments of the population in Washington. Planning for housing now requires an inclusive and equity-driven approach to meet the housing needs for all residents at all income levels. Rulemaking will reflect new statutory requirements for urban growth areas, residential infill, planning for a variety of housing types, and considerations of racially disparate impacts, displacement, and exclusion in local housing policies.
We will release a preliminary draft of proposed WAC amendments for public review in November 2023. You can sign up for email updates on this project on the Housing Rulemaking Contact List (smartsheet.com)
We will post new information to the project website as soon as it is available: GMA Housing Rulemaking (wa.gov)
FEMA, Ecology update elevation, floodproofing certificates and offer more guidance
Do you review floodplain development permits for your community? If so, please note that the Federal Emergency Management Agency (FEMA) has released a new elevation certificate and flood-proofing certification form. The new forms should be implemented immediately in community permitting processes, and the older versions no longer used. Consider sharing this information with surveyors who provide elevation certificates for your property owners.
As a reminder, elevation certificates and floodproofing certificates are required for compliance with floodplain regulations if your community participates in the Community Rating System. These are recommended for use in all other communities enrolled in the National Flood Insurance Program (NFIP). NFIP policyholders can also use an elevation certificate to obtain a more preferable rate, although the form is no longer mandatory for flood insurance.
FEMA Region 10 is hosting a virtual training on elevation certificates from 10-11:30 a.m. Tuesday, August 15. Please note that the hyperlink doesn’t go directly to a registration page but to a calendar lookup, from which you will have to search for the date to find and register for the webinar.
The Northwest Regional Floodplain Management Association (NORFMA) will offer an in-person training on the new certificates at its annual conference, which will be in Spokane Valley. The training will be the afternoon of Tuesday, Sept. 19. You are welcome to attend, whether you will be attending the conference or you are a NORFMA member.
Some highlights from the changes to the elevation certificate include:
- Section A will require photographs for any elevation certificate, not just those to support flood insurance rating.
- Adding lines in Section A8 and A9 for buildings that use both engineered and non-engineered flood openings.
- Space in Section C for a surveyor to identify if a conversion factor was used to convert vertical datums for added transparency.
- In Section D, Section F and the new Section I, there will be a line for email contact information.
- Section E will feature boxes for “construction drawings,” “building under construction,” and “finished construction” to indicate which building stage the measurements in a Zone AO or A were taken during.
- Section G will add a question to identify if a variance was granted for the building.
- New Section H and Section I will be added to help rate a flood insurance policy using the new Risk Rating 2.0 details.
If you have questions, please reach out to your regional Department of Ecology floodplain management specialist.
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Natural Resources, Geological Survey release alluvial fan inventory for Klickitat County
Washington Geological Survey (WGS) is announced the release of its new report, “Alluvial fan inventory of Klickitat County.” The publication, which consists of a pamphlet summarizing key results, is accompanied by an interactive story map. The newly mapped alluvial fans have been added to the WASLID landslide database, which can be viewed on the Geologic Information Portal.
The map inventory includes 4,231 alluvial fans in Klickitat County. Alluvial fans are prone to flash floods and debris flows and therefore pose a significant hazard to public safety. This updated alluvial fan inventory intends to increase awareness of debris flow and flash flood hazards in Klickitat County and provide information for planners, emergency managers, public works departments, and those who live or work where these hazards could affect their lives. This inventory aims to assist local jurisdictions in making educated decisions using the best available science about their assets, community safety and growth management.
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Upcoming Events
Commerce, Thurston Regional Planning Council webinar to focus on critical areas
Commerce is partnering with the Thurston Regional Planning Council and the Municipal Research and Services Center to bring you workshops on various planning topics to support jurisdictions with periodic updates due in 2025.
The August workshop will focus on critical areas with discussions on each type covered in comprehensive planning. Read more in the workshop flyer (PDF).
When: 10 a.m.-Noon Aug. 23
Where: Register online for Zoom webinar
Each workshop will feature a different periodic update topic. Stay tuned to the periodic update webpage for future workshop information and registration. Questions? Contact Suzanne Austin at Suzanne.Austin@commerce.wa.gov.
Upcoming Planners’ Forums
The Planners’ Forums are quarterly events held regionally across Washington in partnership with the American Planning Association Washington Chapter and the Planning Association of Washington. Each forum features guest speakers discussing planning related topics in association with the guidelines set down by the American Planning Association. While regionally focused, the forums are typically on Zoom and available for statewide attendance. You can learn more on the Planners’ Forums webpage.
Attendees will receive AICP credits for attending based on topics covered. Learn more about Commerce’s regional forums at the Growth Management Planners' Forum webpage.
The Short Course on local planning
The Short Course on local planning offers an overview of land use planning laws in Washington, an introduction to comprehensive planning and plan implementation under the Growth Management Act (GMA), and a review of roles in planning and mandatory training on the Open Public Meetings Act for local government officials. All courses are online, free and open to the public.
Next in-person course:
Online-only (Zoom) courses:
Ask about local presentations
Commerce also offers e-visits to local planning commissions or other meetings. Topics include, but are not limited to, comprehensive plan basics and roles in the planning process. Contact your regional planner to request a presentation.
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