On June 10, 2025, the Washington Department of Ecology (“Ecology”) published a CR-101 Preproposal Statement of Inquiry to develop a new permitting program for projects that could “alter” or “impact” waters of the state. The type of “alteration” or “impact” is not clearly defined in the Preproposal Statement of Inquiry, but Ecology refers to its authority under the Water Pollution Control Act, the Shoreline Management Act, and the Growth Management Act suggesting that alteration or impact may include discharge of dredge or fill material, discharge of pollutants from a point source, and/or discharges to groundwater arising from the permitted activity. In this regard, alteration or impact may include both physical, chemical, or biological impacts or alterations to waters of the state, but the actual scope of the permitting program is not yet clear.

Ecology asserts that its new permitting program is intended to address an increase in proposed permits for impacts to waters of the state that were previously regulated under the Clean Water Act.  Ecology’s concern likely arises from the U.S. Supreme Court’s decision Sackett v. EPA which narrowed the definition of Waters of the United States under the Clean Water Act to “relatively permanent, standing or continuously flowing bodies of water” connected to navigable waters and adjacent to wetlands with a “continuous surface connection” to those navigable waters. 598 U.S. 651, 678–79, 143 S.Ct. 1322 (2023).

A CR-101 is generally followed by rule development with opportunities for public participation.  Ecology intends to engage in this process from June 2025 through the summer of 2026. If Ecology decides to adopt such a permitting program, Ecology will ultimately issue a CR-102 Notice of Proposed Rulemaking with a draft of the proposed rule. The public participation process will follow with an opportunity to comment and potentially public hearings. The public participation process will likely occur in the summer and fall of 2026.  Ecology proposes to adopt the final rule with a CR-103 in the fall of 2026.  The rule would be effective in December 2026.  Ecology’s proposed timeline for rule development can also be found here.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.