In May 2023, the U.S. Supreme Court decision in Sackett v. EPA greatly reduced the extent of wetlands and other waters protected by the federal Clean Water Act (CWA). Early estimates indicate that nationally over half of previously jurisdictional wetlands are now unprotected by the CWA and over 70 percent of rivers, lakes, and streams have no or uncertain protections. See House Transportation & Infrastructure Minority, “Murky Waters and Navigating a Post-Sackett World,” Lessons from the Democratic Roundtable,” Aug. 2023. Many are hoping for states and Tribes to “fill the gap” in federal protection, but that has been proving difficult. This article focuses on state responses.
Sackett held that a “relatively permanent” standard determines when a wetland, stream, or other water is a “water of the United States” (WOTUS) protected by the CWA and invalidated the “significant nexus” standard used for almost two decades. Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023). Thus, WOTUS includes waters that are relatively permanent, standing or continuously flowing, and that provide flow to a traditional navigable water. Sackett held a wetland is a WOTUS where it has a continuous surface connection to a relatively permanent water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Impacts of this definition of WOTUS are distributed unequally among states. Since Sackett removes jurisdiction from all ephemeral streams, intermittent streams that flow less than seasonally, and all wetlands adjacent to ephemeral streams, states with a high percentage of ephemeral and intermittent streams are at risk of losing federal protections for many of their streams and wetlands. For example, an estimated 93 percent of New Mexico’s streams and rivers are ephemeral or intermittent. Kyla Bennett, “Impact of Proposed Waters of the U.S. (WOTUS) Redefinition on Wetlands and Waters in New Mexico,” Aug. 1, 2019.
States also vary widely in whether they have wetlands commonly lacking surface connections to the stream network, such as prairie potholes in the upper Midwest, Carolina Bays and pocosins in the Southeast, playa lakes in the Southern High Plains, and vernal pools in California. States are likely to experience substantial rollbacks in CWA protection for such wetlands.
Comprehensive estimates on a national or statewide basis are not yet available, pending additional implementation guidance from the Environmental Protection Agency (EPA), the Army Corps of Engineers, and the courts. However, most anticipate early estimates of substantial losses in coverage to be confirmed.
Under CWA section 510, states retain authority to be more environmentally protective than federal programs and thus, at least in theory after Sackett, may fill the gap in aquatic resource protection. However, states vary widely in their ability to provide state law protections for waters no longer considered WOTUS.
Only about half the states regulate some waters more broadly than WOTUS. U.S. EPA & Department of the Army, Economic Analysis for the Proposed “Revised Definition of ‘Waters of the United States’” at Rule 45–51, p. 49 tbl.II-1 (2021). Often these protections come from a comprehensive definition of “waters of the state” protected by state programs that includes most wetlands, streams, lakes, and other waterbodies. See, e.g., Fla. Stat. § 403.031(23) (2023).
Some states have enacted protections for specific resources. For example, Minnesota adopted the Wetland Conservation Act in 1991, establishing a no-net-loss policy for all state wetlands to be achieved by a combination of regulatory and nonregulatory approaches, but this statute does not address ephemeral streams. See Minn.Stat. §§ 103G.221–103G.2375 (2023). Ohio has a comprehensive “isolated wetland” law explicitly protecting wetlands not subject to CWA regulation at Ohio Rev. Code Ann. §§ 6111.02–6111.28, but in 2022, Ohio legislatively removed protections for ephemeral streams. H.B. 175, 134th Gen. Assemb., as enacted (Ohio 2022). Even states with comprehensive water resource protection programs are concerned about potential post-Sackett costs of “filling the gap,” such as for state-issued jurisdictional determinations, an increased need for state-issued individual permits since federal general permits are no longer available for non-WOTUS waters, and otherwise taking on actions previously performed by federal agencies.
Twenty-four states have historically relied on CWA section 401 water quality certification to protect their wetlands and other waters. See, e.g., Brenda Zollich and Jeanne Christie, “Status and Trends Report of State Wetland Programs in the United States” (Association of State Wetland Managers: Oct. 2015). Under section 401, no federal permit or license can be issued that may result in a discharge into WOTUS, unless the state where the discharge would originate certifies it will be consistent with water quality requirements or waives its authority to do so. States often condition their certification to ensure the resulting federal permit is consistent with state requirements. However, if a water is not WOTUS, there is no federal permit or associated section 401 certification. Those states must now establish new programs to protect non-WOTUS that are important to the state. Many of these new programs will require legislative authorization and funding, which is rarely quick.
Some states have “no more stringent than” laws that either expressly prohibit a state from being more environmentally protective than federal minimum program requirements, establish often burdensome processes and findings before expanding protections, or both. See, e.g., James McElfish, “State Protection of Nonfederal Waters: Turbidity Continues,” 52 E.L.R. 10687 (Environmental Law Institute 2022). The ability of these states to fill the gap without legislative change to these stringency laws seems limited.
Federal funding for aquatic resource protection programs is essential for developing and implementing state programs to fill the gap after Sackett.
The CWA authorizes grants to support state and tribal pollution control programs, but funding levels generally have not increased enough to reflect inflation, creating shortages at the state program level. Wetlands were particularly hard-hit by Sackett and have been poorly addressed by CWA funding. Current interpretations of CWA section 104(b)(3) wetland grants view funding as being for program development only and not implementation, and funding levels have remained at $14.6 million for over 10 years, representing an almost 23 percent reduction when adjusted for inflation. Many states and state associations, including the National Association of Wetland Managers, are pushing for current wetland program funding to be available for implementation and an increase to reflect the state gap-filling challenge created by Sackett.
The success of state efforts to fill the gap left by Sackett will depend on effective coordination and collaboration between the federal government and states, and an increase in federal funding for state programs.
