A Landowner’s Guide to Washington’s Environmental Regulations in Land Use Planning

Dealing with environmental regulations in Washington land use planning means integrating a thorough environmental review into your project from day one. It involves identifying which local, state, and federal laws apply to your specific parcel of land before you finalize your development plans.

The process is often challenging. You may face a shifting regulatory landscape, particularly after recent court decisions like Sackett v. EPA, which altered federal wetlands protections and placed a greater burden on state and local agencies. A misstep leads to significant project delays, unexpected costs, or even the denial of necessary permits.

However, a proactive approach turns these requirements from a roadblock into a clear path forward. By addressing environmental considerations early, you design a project that meets your goals and complies with the law.

If you have a question about how environmental regulations may affect your land use plans in Washington, call Dickson Frohlich Phillips Burgess at (206) 621-1110.

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Key Takeaways for Environmental Land Use Regulations in Washington

State and local laws are now the primary focus. Following the Supreme Court’s decision in Sackett v. EPA, federal oversight of many wetlands was reduced, placing greater responsibility on Washington’s state and local agencies. This means your project’s success hinges on satisfying state laws and your local Critical Areas Ordinance.
Conduct environmental due diligence before project design. Identifying potential constraints such as wetlands, steep slopes, or protected habitats before you invest in architectural plans saves significant time and money. Use publicly available mapping tools and walk the property to spot red flags early.
A transparent SEPA process is the fastest path to approval. The State Environmental Policy Act (SEPA) requires a detailed review of your project’s environmental impacts. Providing a complete and accurate SEPA checklist that proposes clear mitigation measures is the best strategy to avoid a costly and time-consuming Environmental Impact Statement (EIS).

The Ground Rules: Understanding Which Environmental Laws Apply to Your Land

Before you plan, you need to know the rules. Several layers of law, such as federal, state, and local regulations, could apply to your property. The key is understanding which ones are triggered by your specific project.

We find that most land use projects in Washington run into one or more of the following regulatory frameworks.

Federal Laws (The Big Picture)

The Clean Water Act (CWA): This law regulates what is discharged into “Waters of the United States” (WOTUS). A recent Supreme Court case, Sackett v. EPA, narrowed the definition of WOTUS, generally limiting federal jurisdiction to wetlands with a continuous surface connection to larger bodies of water (more on this below). This means more regulatory authority now falls to the state.
The Endangered Species Act (ESA): If your project might affect a federally listed threatened or endangered species or its habitat, the ESA comes into play. This might require a biological assessment to determine the potential impacts.

State Laws (Where the Action Is)

The State Environmental Policy Act (SEPA): This is a foundational Washington law. If your project requires a government permit, you will likely need to complete a SEPA review to assess its potential environmental impacts.
The Shoreline Management Act (SMA): If your property is near a significant lake, stream, or coastal water, this act governs development within the “shoreline jurisdiction.”
Washington’s Water Pollution Control Act: This works alongside the federal CWA to protect state waters, and its importance has grown as the federal government’s role has been reduced.

Local Ordinances (The Daily Details)

Critical Areas Ordinances (CAOs): Every city and county in Washington has rules to protect critical areas, including wetlands, fish and wildlife habitats, frequently flooded areas, and geologic hazard areas. These are typically the most direct regulations you will face.
Zoning Codes: Local zoning determines what you build and where. Some cities are now ending single-family-only zoning, which may create new development opportunities but also brings new density-related environmental considerations.

What Does the Sackett v. EPA Decision Mean for Your Washington Property?

Environmental law written on a white paper on table background.

For decades, landowners faced uncertainty about whether wetlands on their property were federally protected. The term “Waters of the United States” (WOTUS) was broad, and getting a determination from the Army Corps of Engineers was a long and expensive process.

In 2023, the Supreme Court’s decision in Sackett v. EPA changed the landscape. As mentioned earlier, the ruling significantly narrowed the definition of federally protected wetlands. Simply put, if a wetland does not have a “continuous surface connection” to a larger, traditionally navigable body of water, it likely no longer falls under the federal Clean Water Act’s jurisdiction. This does not remove regulation; it creates a different kind of uncertainty.

Now, the responsibility for protecting those non-federal wetlands falls almost entirely on state and local governments. As a result, Washington’s state-level environmental agencies and local county authorities are taking a more active role, and their interpretation of state laws is now more important than ever. You might find that while a federal permit is no longer needed, a state or local permit is, and the requirements may be just as stringent.

To move forward, consider these steps:

Do not assume your property is unregulated. Just because federal oversight may be gone does not mean you have a green light.
Focus on local and state requirements first. Your project’s success will likely depend on satisfying Washington’s Department of Ecology and your local planning department’s Critical Areas Ordinances.
Get a professional wetlands delineation. A qualified consultant determines the boundaries of any wetlands on your property and assesses whether they fall under state or local jurisdiction. An attorney experienced in land use matters helps you engage the right consultants for your project.

Your First Step: The Environmental Due Diligence Checklist

Conceptual photo about Due Diligence Checklist with written phrase.

Before you spend significant money on architects and engineers, you need to conduct a thorough environmental review. Think of it as a preliminary inspection for your land that reveals potential problems before they become costly disasters. A proactive environmental due diligence process helps you identify red flags early, allowing you to design around them or determine if a project is even feasible.

Here is what we recommend looking for when beginning to think about how to deal with environmental regulations in land use planning:

Review Your Local Critical Areas Ordinance (CAO): This is your most important local document. Find your city or county’s CAO online and see how it defines and regulates wetlands, streams, steep slopes, and wildlife habitats.
Use Publicly Available Mapping Tools:
- Washington Department of Fish and Wildlife (WDFW) Priority Habitats and Species Mapper: This tool shows the known locations of protected species and their habitats.
- County and City GIS Mapping: Most local governments in Washington have online geographic information system (GIS) maps that show zoning, critical areas, and shoreline designations. King County, for example, offers a variety of public mapping tools.
- National Wetlands Inventory: While not a definitive regulatory map, it provides a good starting point for identifying potential wetlands.
Walk the Property with a Discerning Eye: Look for signs of water, like marshy vegetation, standing water (even in dry seasons), or drainage patterns. Note steep slopes or signs of erosion.
Check for Historical Contamination: Use the Washington State Department of Ecology’s “What’s in My Neighborhood?” tool to see if there are any known contaminated sites on or near your property.

The SEPA Process in Washington: What to Expect When the State Reviews Your Project

Most development projects in Washington that require a permit will trigger a review under the State Environmental Policy Act (SEPA).

The core of the process is the SEPA checklist. This is a detailed form where you must disclose the full scope of your project and its potential environmental impacts, from stormwater runoff to traffic generation. An incomplete or inaccurate checklist causes the lead agency (usually the local planning department) to reject your application. In difficult cases, the agency might issue a “Determination of Significance,” which means you will be required to prepare a full Environmental Impact Statement (EIS). An EIS is a lengthy and expensive study that halts a project for months or even years. The risk of getting bogged down in procedural delays or being forced into an EIS is a major concern for developers.

The goal is to provide enough information and mitigation measures in your initial application to allow the lead agency to issue a “Determination of Non-Significance” (DNS).

Be Thorough and Transparent: Fill out the SEPA checklist completely and accurately. Do not try to downplay potential impacts. It is far better to identify an issue and propose a solution than to have the agency discover it for you.
Propose Mitigation Measures Upfront: If you know your project will increase impervious surfaces, include a detailed stormwater management plan in your application. If you are building near a sensitive habitat, propose enhanced buffers or a habitat restoration plan. This shows the agency you have already thought through the environmental consequences.
Consider a Mitigated Determination of Non-Significance (MDNS): In some cases, the agency will identify potential impacts but will issue a DNS if you agree to certain conditions. This is a practical path forward that avoids the need for a full EIS. Our firm helps evaluate whether these conditions are reasonable and feasible for your project.

Frequently Asked Questions About Land Use and Environmental Law

How long does the environmental permitting process take in Washington?

It varies greatly. A simple project with no critical areas might get a permit in a few months. A complicated project involving a SEPA review, shoreline permits, and federal approvals could take a year or more. Early and thorough preparation is the best way to keep the timeline as short as possible.

What happens if I build without the required environmental permits?

Local or state agencies issue a stop-work order, which immediately halts your project. You could also face significant fines and may be required to remove the unpermitted work and restore the site to its original condition, all at your own expense.

Does the government have the authority to prevent me from developing my property because of environmental regulations?

Yes, in some cases. If a project cannot be designed to meet environmental standards, a permit may be denied. However, this raises questions under the Fifth Amendment’s Takings Clause. If a regulation denies all economically viable use of a property, you may be entitled to compensation. This is a complicated area of law that requires a detailed analysis of your specific situation.

With cities eliminating parking minimums, how does that affect environmental review?

Removing parking minimums encourages denser development, which has positive environmental effects like reduced reliance on cars. However, it may also trigger other environmental concerns during review, such as the need for more robust stormwater management systems to handle increased impervious surfaces from larger building footprints.

My project is for clean energy. Is the permitting process any different?

Yes, Washington has recently passed legislation to streamline the permitting process for certain clean energy projects. While the environmental review requirements under SEPA still apply, the timelines may be expedited to help the state meet its climate goals.

Turn Regulatory Hurdles into a Clear Development Plan

Attorney, Thomas Dickson — **Thomas Dickson**

Do not let the complexity of environmental regulations stop your project before it starts. The rules are intricate and the stakes are high, but they are not impossible to manage.

You do not have to decipher these regulations alone. Having experienced legal counsel on your side helps you identify potential issues early and address them head-on. At Dickson Frohlich Phillips Burgess, our practice focuses on land use and real estate law. We help you understand the specific regulations that apply to your property and work toward securing the permits you need to move forward.

To discuss your project and your legal options, call us today at (206) 621-1110.