61 Navigating Rough Waters After Sackett v. EPA: Federal, Tribal, and State Strategies Rajpreet K. Grewal* and Melissa K. Scanlan** The Clean Water Act is the primary federal law regulating impacts to water resources and water quality in the United States. Congress as- serted the focus of the Act in the first section: to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Federal jurisdiction to implement this focus for many of the Act’s water protection programs turns on whether a waterbody is classified as a “Water of the United States” (WOTUS). The definition of WOTUS has been contested since the ink dried on the Act, with proponents of greater water protections arguing for more expansive boundaries of federal ju- risdiction. Most recently, the Supreme Court re-interpreted WOTUS in Sackett v. Environmental Protection Agency (2023), in which the Court held that wetlands 300 feet from Priest Lake would no longer be consid- ered adjacent wetlands protected as WOTUS. Upending forty-five years of agency and judicial interpretation, the Court narrowed the definition of WOTUS to only those wetlands that have a continuous surface con- nection to a traditionally navigable body of water, such as a river or lake. This places many wetlands and ephemeral and intermittent streams outside of federal jurisdiction, and thus, the protections of the CWA. Yet, wetlands and nonperennial streams are vital to the chemical, physical, and biological integrity of the Nation’s waters. Wetlands filter pollutants from water, retain and absorb flood waters, and provide hab- itats for wildlife. Ephemeral and intermittent streams are ubiquitous and important pathways that drain water and pollutants into tradi- tional navigable waters. Removing federal protections means these ar- eas are vulnerable to ruin by human alterations, and it increases flood risks to downstream communities. * Rajpreet K. Grewal is a Water Policy Specialist and Sea Grant UW Water Science - Policy Fellow (2023-24) at the Center for Water Policy in the University of Wisconsin-Milwaukee’s School of Freshwater Sciences. ** Melissa K. Scanlan is the Lynde B. Uihlein Endowed Chair in Water Policy, Director of the Center for Water Policy, and Professor, University of Wisconsin-Milwaukee’s School of Fresh- water Sciences. 62 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 Decreasing federal jurisdiction over the majority of wetlands and nonperennial streams across the U.S. places a greater emphasis on the role of states and tribes in water protection. Lacking a consistent fed- eral approach results in a patchwork of protections for waters that are now considered nonfederal, even when those waters impact large re- gional shared waters, such as the Great Lakes, the Mississippi River, the Colorado River, and Rio Grande, to name a few. This Article starts with a grounding in the scientific literature to explore the importance and vital functions of the waters that have lost federal jurisdiction. Using that as a springboard, we explain the most important legal decisions defining WOTUS to place Sackett v. EPA in context. We then discuss the divergent responses to the loss of federal jurisdiction by surveying re- sponses at federal, tribal, and state levels of government. We show that many tribes opposed reducing federal protections leading up to Sackett, and after the decision, at the federal and state level, the battle continues over removing versus restoring regulatory protections. We observe that even in states where reducing regulatory control is favored, agreements have been forged around non-regulatory programs that fund wetland protections. We conclude that tribes and states have the power to shape protections for these vital waters regardless of federal jurisdiction, but with no federal regulatory backstop, the integrity of the Nation’s waters is threatened by this piecemeal approach. I. Introduction ...................................................................................................... 63 II. Importance and Vital Functions of Wetlands and Ephemeral and Intermittent Streams ..................................................................................... 65 A. Wetlands .......................................................................................................... 65 B. Ephemeral and Intermittent Streams ................................................. 73 C. Importance and Vital Functions in Wet and Arid Regions ........ 75 1. Great Lakes Region State Example: Wisconsin .......................... 76 2. Southwest Region State Example: New Mexico ......................... 80 D. Importance to Tribes ................................................................................. 83 III. Wetland and Stream Protections Under the Clean Water Act: Defining “Navigability” ................................................................................. 86 A. CWA Section 404 Permits for Dredging and Filling WOTUS .... 87 B. Defining WOTUS and the Road to Sackett ......................................... 95 C. Sackett v. EPA .............................................................................................. 102 IV. Federal, Tribal, and State Responses to Sackett ............................. 106 A. Federal Court Challenges Post-Sackett ........................................... 106 B. Federal Government Actions Post-Sackett .................................... 109 2025] Navigating Rough Waters After Sackett v. EPA 63 C. Tribal and State Regulatory Frameworks and Actions Post- Sackett ........................................................................................................... 110 1. Tribal Responses to Sackett ............................................................. 110 a. Tribal Nations—Trust Relationship with Federal Government and Sovereignty ..................................................... 110 b. Tribal Responses to Sackett ........................................................ 112 2. State Responses to Sackett ............................................................... 114 a. Strengthened/Increased Protections over Wetlands ...... 115 b. Weakened/Decreased Protections over Wetlands ........... 119 c. Increases in Non-Regulatory Protections for Wetlands . 121 V. Conclusion ....................................................................................................... 124 I. INTRODUCTION The 1970s, the environmental decade, saw many environmental movements and regulations, especially on the federal level. One such regulation was the Clean Water Act (CWA), enacted in 1972, in which Congress asserted the focus of the Act in the first section “to restore and maintain the chemical, physical, and biological integrity of the Na- tion’s waters.”1 Federal jurisdiction of many of the CWA’s programs applies only to “waters of the United States” (WOTUS), the definition of which has been contested since its inception. Most recently, the Su- preme Court interpreted WOTUS in Sackett v. Environmental Protec- tion Agency (May 2023).2 The Court narrowed federal jurisdiction, holding that WOTUS only covers those wetlands that have a continu- ous surface connection to a traditionally navigable body of water, up- ending forty-five years of agency and court interpretation.3 Thus, the majority of wetlands and ephemeral and intermittent streams are no longer covered by federal jurisdiction and protected by the CWA. However, wetlands and ephemeral and intermittent streams are vi- tal to the chemical, physical, and biological integrity of the Nation’s waters. Given the decrease in federal jurisdiction, regulatory protec- tion of many wetlands and ephemeral and intermittent streams now rests entirely with state and tribal wetlands programs. This Article will focus on the impacts of the 2023 Supreme Court decision in Sackett v. Environmental Protection Agency (Sackett) to wetlands and ephemeral and intermittent streams. In this Article, we 1. 33 U.S.C. § 1251(a). 2. Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023). 3. Id. at 678–79. 64 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 aim to lay out the most recent interpretation of WOTUS, and we high- light the impacts on tribes and states caused by this redrawing of fed- eral jurisdiction. Federally recognized tribes are uniquely positioned within the governmental structure of the U.S., and Sackett has left a gap in protections of wetlands and ephemeral and intermittent streams on tribal lands. Additionally, in response to Sackett, some states have increased protections for waters in their state that lost protections, while others have taken the opportunity to decrease pro- tections. We argue this lowered federal floor has further complicated the patchwork of protections across the U.S. for these vulnerable wa- terbodies. As waters are not static and do not abide by political boundaries, these deregulation decisions by some states can also im- pact the water resources of tribes and other states within the region. Part II discusses the ecological importance of wetlands and ephem- eral and intermittent streams. We review the scientific literature to explore the many aspects of life that are impacted by wetlands and nonperennial streams. We discuss these waters’ importance and functions in both arid and wet parts of the Nation, highlighting case studies from the states of Wisconsin and New Mexico. Then we ex- plain the interests of federally recognized tribes in these important waters, also drawing examples from tribes in arid and wet parts of the country. From this grounding in science, in Part III we then turn to how the law integrates or ignores science in the legal frameworks established to regulate human activities in wetlands and nonperennial streams. We contextualize Sackett by explaining the scope of federal jurisdic- tion under the CWA and the prior case law. Here, we introduce the CWA Section 404 permit program, which regulates dredge and fill projects. We discuss the scope of federal jurisdiction applying only to WOTUS, as interpreted by regulations and three Supreme Court deci- sions: United States v. Riverside Bayview Homes, SWANCC v. U.S. Army Corps of Engineers, and Rapanos v. United States.4 After positioning Sackett within this legal history, we explain the Court’s holding and the early estimates of its impact on reducing federal jurisdiction over wetlands and ephemeral streams. In Part IV, we evaluate federal, tribal, and state responses to Sackett. We discuss how these varied responses create a patchwork of protec- tions across the U.S. as limited federal jurisdiction shifts the focus to 4. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs (SWANCC), 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006). 2025] Navigating Rough Waters After Sackett v. EPA 65 tribes and states to fill in the gaps. We conclude that tribes and states have the power to shape protections for these vital waters regardless of federal jurisdiction, but with no federal regulatory backstop, the in- tegrity of the Nation’s waters is threatened by this piecemeal ap- proach. II. IMPORTANCE AND VITAL FUNCTIONS OF WETLANDS AND EPHEMERAL AND INTERMITTENT STREAMS A. Wetlands In the first few months after the Sackett decision, the U.S. Environ- mental Protection Agency (EPA) estimated the elimination of federal jurisdiction may result in the loss of protection of 63% of the Nation’s wetland acres.5 To better understand this loss of jurisdiction, we re- view the scientific literature on the importance and vital functions of wetlands. Before “Drain the swamp!” became a political charge, it was a maxim of taming the wilds of the United States.6 The perception of wetlands has changed drastically over time, and these “swamps” are now acknowledged in science as critical ecological systems. The Na- tional Research Council defines wetland as “an ecosystem that de- pends on constant or recurrent, shallow inundation or saturation at or near the surface of the substrate.”7 Additionally, a wetland’s 5. U.S. Env’t Prot. Agency, Policy Webinar: Updates on the Definition of “Waters of the United States,” 24:09-24:18, YOUTUBE (Sept. 12, 2023, 03:00 PM EST), https://www.youtube.com/watch?v=lcCVelsAy2c [https://perma.cc/67GC-TTY2]. 6. Historically, wetlands were commonly drained. See generally THOMAS E. DAHL & GREGORY J. ALLORD, TECHNICAL ASPECTS OF WETLANDS: HISTORY OF WETLANDS IN THE CONTERMINOUS UNITED STATES, U.S. GEOLOGICAL SURV., NAT’L WATER SUMMARY ON WATER RES. 19 (1994), https: //wwv.inhs.illinois.edu/files/8113/4020/2403/history_of_wetlands.pdf [https://perma.cc/5 MPR-9MLE]. 7. NAT’L RSCH. COUNCIL, WETLANDS: CHARACTERISTICS AND BOUNDARIES 3 (Nat’l Acad. Press 1995). Due to challenges over federal regulation of wetlands, the U.S. Congress requested the EPA ask the National Research Council to create a committee, formed in 1993, to study the scientific basis of characterizing wetlands. This effort resulted in the 1995 report, Wetlands: Characteristics and Boundaries, which presented a reference definition for wetlands, an overview of wetland func- tions, and provided recommendations and conclusions for wetland criteria and indicators. The formation of a reference definition outside of the regulatory context, based in science, is helpful as it stands outside of any specific agency, policy, or regulation. The reference definition in its entirety is: A wetland is an ecosystem that depends on constant or recurrent, shallow inundation or saturation at or near the surface of the substrate. The minimum essential characteristics of a wetland are recurrent, sustained inundation or saturation at or near the surface and 66 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 “minimum essential characteristics” are “recurrent, sustained inunda- tion or saturation at or near the surface and the presence of physical, chemical, and biological features reflective of recurrent, sustained in- undation or saturation.”8 There are three main factors that character- ize a wetland: water, substrate (soils), and biota (hydrophytic vegeta- tion).9 The federal agencies’ definition also includes these three main factors.10 Types of wetlands in the U.S. include freshwater marshes, tidal salt and brackish marshes, prairie potholes, fens, bogs, swamps, marshes, bottomlands, and mangroves.11 These wet areas have often been viewed as obstacles to people’s de- sire to build or farm, so they have been drained and filled to make way for human designs for the land and waterscape. According to Dahl and Allord, there were approximately 221 million acres of wetlands in the now conterminous U.S. at the time of European colonization in the early 1600s.12 The fledgling U.S. encouraged European immigrants to spread their wings and expand “civilization” westward. To increase the productive value of available land for farming, wetlands were rou- tinely drained.13 According to Dahl and Allord, during this time, wet- lands were regarded as “swampy lands that bred diseases, impeded the production of food and fiber, and generally were not useful for frontier survival.”14 Large amounts of wetland drainage and land con- version continued well into the 1900s, encouraged by federal the presence of physical, chemical, and biological features reflective of recurrent, sus- tained inundation or saturation. Common diagnostic features of wetlands are hydric soils and hydrophytic vegetation. These features will be present except where specific physico- chemical, biotic, or anthropogenic factors have removed them or prevented their develop- ment. Id. 8. Id. 9. Id. The report notes these are factors and not parameters. It also notes that some wetlands develop where hydric soils are not present or where hydrophytic vascular plants do not grow. The report states these wetlands should not be excluded from regulation just because they lack those common indicators. 10. Regulatory Program of the Army Corps of Eng’rs, 42 Fed. Reg. 37122, 37128 (1977). See also Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37054, 37081 (2015); U.S. ENV’T PROT. AGENCY, How Wetlands are Defined and Identified Under CWA Section 404, https://www.epa.gov/cwa-404/how-wetlands-are-defined-and-identified-under-cwa-section- 404 [https://perma.cc/KX4H-56HY] (last updated Apr. 6, 2023). 11. NAT’L RSCH. COUNCIL, supra note 7, at 21 t.2.1. 12. DAHL & ALLORD, supra note 6, at 19–20. The U.S. enacted the Land Ordinance Act in 1785, which established the U.S. Public Lands Survey. This required surveying and partitioning of land before settlement. These surveys do supply some information on wetlands. Id. 13. Id. at 19–20. 14. Id. at 20. 2025] Navigating Rough Waters After Sackett v. EPA 67 government policies.15 Dahl and Allord estimate that by the mid- 1980s, about 103 million acres of wetlands remained.16 While the wetland protections ushered in by the CWA in the 1970s slowed the rate of destruction and mitigated losses with required wet- land creation, the trend of loss has continued. In its most recent con- gressionally-mandated report, “Status and Trends of Wetlands in the Conterminous United States 2009 to 2019” (Status and Trends Re- port), the U.S. Fish and Wildlife Service discusses the change in the amount of wetlands in the study decade.17 They report that in 2019, “there were an estimated 116.4M ac (47.1M ha) of wetlands in the conterminous U.S.”18 In the study decade, the amount of wetland losses surpassed wetland gains resulting in a net wetland loss of 221,000 acres between 2009 and 2019.19 This, when compared to the previous report period (2004–2009), showed an accelerated rate of net wetland loss by over 50%.20 Looking closer at the categories of wetlands, the Status and Trends Report highlighted that the data “in- dicates a fundamental alteration of wetland type at a national scale”21 moving from vegetated wetlands to non-vegetated wetlands, obscur- ing the magnitude of vegetated wetland loss.22 From 2009–2019, veg- etated wetlands had a net decrease of 670,000 acres, an area exceed- ing the land area of Rhode Island.23 However, non-vegetated wetlands increased in net area by 488,000 acres.24 Non-vegetated wetlands in- clude beaches, mud flats, shoals, and sand bars.25 These reports show a trend in wetlands loss measured in acres and in quality (vegetated to non-vegetated) over time. The way society understands the value of wetlands has changed, es- pecially since the 1970s.26 Since then, there has been a growing awareness of wetlands as valuable areas that provide vital 15. See generally Id. 16. By the mid-1980s, six states lost over 85% of their wetlands, including Ohio, Indiana, and Illinois. Twenty states lost 50% or more, including Michigan, Pennsylvania, and New York. Id. 17. MEGAN LANG ET AL., STATUS AND TRENDS OF WETLANDS IN THE CONTERMINOUS UNITED STATES 2009 TO 2019, U.S. DEP’T OF INTERIOR; FISH & WILDLIFE SERV. (2024). This is the sixth report in a series of Congressionally mandated Wetlands Status and Trends reports over about the past seventy years. Id. at 8. 18. Id. at 16. 19. Id. 20. Id. at 17. 21. Id. 22. Id. at 18. 23. LANG ET AL, supra note 17 at 18. 24. Id. 25. Id. at 16. 26. DAHL & ALLORD, supra note 6, at 24. 68 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 environmental functions, and these values are somewhat reflected by wetland protection laws.27 Wetlands play a critical role in many as- pects of life as extensively documented in the “Brief of Scientific Soci- eties as Amici Curiae in Support of Respondents” (Amicus Brief of Sci- entific Societies) in Sackett.28 Generally, wetlands provide support for biodiversity, improvement for water quality, flood abatement func- tions, and carbon management.29 They serve as habitat and breeding places for about 40% of the world’s plants and animals, although they cover only 6% of our planet’s land area.30 Over one-third of the threat- ened or endangered species in the U.S. live only in wetlands, and about half use wetlands during their lifetimes including for food, water, shel- ter, and spawning habitat.31 Wetlands are also important for birds and migratory waterfowl.32 For part of the year, migratory waterfowl use coastal and inland wetlands for resting, breeding, and nesting.33 Additionally, wetlands can improve water quality through the re- tention of pollutants, including excess nutrients and chemical contam- inants, that could degrade waters downstream.34 Wetlands reduce or delay floods through “storing and desynchronizing floodwaters” and thus allow the stormwater to move, over time, to navigable waters as base flow.35 Thus, wetlands act as natural sponges that hold and 27. Id. There were prior acts that sought to protect wetlands. Congress passed the Migratory Bird Hunting Stamp Act in 1934 which was one of the first pieces of legislation to begin the pro- cess of acquiring and restoring wetlands. Id. 28. Twelve national and international scientific organizations were amici curiae in this brief. Brief of Scientific Societies as Amici Curiae in Support of Respondents, Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023) (No. 21-454). 29. Joy Zedler & Suzanne Kercher, Wetland Resources: Status, Trends, Ecosystem Services, and Restorability, 30(1) ANN. REV. ENV’T & RES. 39, 50 (2005); See Amicus Brief of Scientific Societies, supra note 28, at 10–11 (citing U.S. ENV’T PROT. AGENCY, EPA/600/R-14/475F, CONNECTIVITY OF STREAMS AND WETLANDS TO DOWNSTREAM WATERS: A REVIEW AND SYNTHESIS OF THE SCIENTIFIC EVIDENCE ES-9 (2015)). 30. Life Interlaced: Wetlands and People, UNITED NATIONS, https://www.un.org/en/obser- vances/world-wetlands-day [https://perma.cc/L2CX-ZU95] (last visited Dec. 28, 2023). 31. Animals and plants that live only in inland wetlands include wood ducks, muskrat, cattails, and swamp rose. Others use wetlands for food, water, and shelter including the striped bass, peregrine falcon, otter, black bear, raccoon, and deer. Why Wetlands are Important, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/wetlands/why-are-wetlands-important [https://perma.cc /AXV9-8K2A] (last updated Mar. 11, 2024). 32. Id. 33. Id. 34. U.S. ENV’T. PROT. AGENCY, EPA/600/R-14/475F, CONNECTIVITY OF STREAMS AND WETLANDS TO DOWNSTREAM WATERS: A REVIEW AND SYNTHESIS OF THE SCIENTIFIC EVIDENCE ES-3 (2015) [hereinaf- ter CONNECTIVITY REPORT]. 35. See Amicus Brief of Scientific Societies, supra note 28, at 11 (citing id. at ES-9). 2025] Navigating Rough Waters After Sackett v. EPA 69 slowly release surface water, rain, snowmelt, groundwater, and flood- water over time.36 Confirming wetlands’ sponge-like capabilities, EPA estimates that one acre of wetland can store about one million gallons of water, al- lowing water to slowly seep into navigable waters and lower peak flows during floods.37 The continued loss of wetlands, and thereby, storage capacity, will only exacerbate the already significant prop- erty-damaging and deadly impacts of floods. According to the Na- tional Centers for Environmental Information (NCEI) housed within the National Oceanic and Atmospheric Administration (NOAA), from 1980–2023, there were forty-four flood events that resulted in 738 deaths, individually resulting in losses of more than one billion dollars and cumulatively amounting to $196.6 billion in costs in the U.S. alone.38 Of these forty-four floods whose losses exceeded one billion dollars each, ten occurred in the last five years reported, from 2019– 2023.39 Cumulatively, these ten floods resulted in ninety-eight deaths and an estimated total of $37.7 billion in damages.40 These flood events are increasing and are expected to increase fur- ther. Heavier rainfall, paired with land use changes and other varia- bles such as soil moisture and snow, is already leading to increasing flood damage.41 Additionally, according to the 2023 “Fifth National Climate Assessment,” heavy rainfall events are expected to increase across the U.S. in the coming years.42 Wetlands interact with surface water and groundwater in dynamic systems. To inform the federal rulemaking on defining the scope of wetland protections, EPA published a 2015 report based on a review of more than 1,200 peer-reviewed publications: Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence (Connectivity Report).43 36. Why Wetlands are Important, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/wet- lands/why-are-wetlands-important [https://perma.cc/AXV9-8K2A] (last updated Mar. 11, 2024). 37. OFF. OF WATER, U.S. ENV’T PROT. AGENCY, EPA 843-F-06-001, WETLANDS: PROTECTING LIFE AND PROPERTY FROM FLOODING (2006). 38. Billion-Dollar Weather and Climate Disasters, United States Summary, NAT’L CTRS. FOR ENV’T INFO., NAT’L OCEANIC & ATMOSPHERIC ADMIN (2024), https://www.ncei.noaa.gov/access/bil- lions/summary-stats [https://perma.cc/M52S-ZTE2]. 39. Id. 40. Id. 41. Elizabeth A. Payton et al., Water in FIFTH NATIONAL CLIMATE ASSESSMENT, U.S. GLOB. CHANGE RSCH. PROGRAM (Allison Crimmins et al. eds. 2023). 42. Id. 43. CONNECTIVITY REPORT, supra note 34, at 2-14 (2015). 70 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 This report represents the state-of-the-science on the connectiv- ity and isolation of waters in the United States. It makes five ma- jor conclusions, summarized below, drawn from a broad range of peer-reviewed scientific literature. • The scientific literature unequivocally demonstrates that streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function. • The scientific literature clearly shows that wetlands and open waters in riparian areas (transitional areas between terrestrial and aquatic ecosystems) and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These systems act as ef- fective buffers to protect downstream waters from pollution and are essential components of river food webs. • There is ample evidence that many wetlands and open waters located outside of riparian areas and flood- plains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters. Some potential benefits of these wetlands are due to their isolation rather than their connectivity. Evalua- tions of the connectivity and effects of individual wet- lands or groups of wetlands are possible through case- by-case analysis. • Variations in the degree of connectivity are deter- mined by the physical, chemical, and biological envi- ronment, and by human activities. These variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters. • The literature strongly supports the conclusion that the incremental contributions of individual streams and wetlands are cumulative across entire water- sheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.44 44. CONNECTIVITY REPORT, supra note 34, at ES-3. 2025] Navigating Rough Waters After Sackett v. EPA 71 Thus, wetlands have a variety of hydrological connections with other water networks via surface or groundwater, and these can be continuous, seasonal, or ephemeral depending on the conditions of the watershed.45 Further, the Connectivity Report states that wetlands and streams, with varying levels of connection and isolation, are cen- tral to “maintain[ing] the structure and function of downstream wa- ters.”46 The Connectivity Report organizes wetlands into two categories— riparian/floodplain wetlands and non-floodplain wetlands. Based on its scientific review, the Connectivity Report states riparian/floodplain wetlands are “highly connected to streams and rivers through surface water, shallow groundwater, and biological connectivity.”47 By contrast, non-floodplain wetlands are composed of “depres- sional, slope, and flat wetlands that lack surface water inlets.”48 Non- floodplain wetlands are shown to interact with groundwater, which can travel long distances and impact downstream waters.49 These groundwater connections can also serve as groundwater discharge (flow of groundwater to a wetland) or groundwater recharge (flow of water from the wetland to groundwater).50 Multiple studies have shown that during dry periods, water tends to move from wetlands into the groundwater and vice versa in wetter periods.51 Additionally, non-floodplain wetlands, although they lack relative surface water connections, serve as sources for dissolved organic matter and ele- ments such as nitrogen, phosphorous, and carbon which are im- portant parts of food webs in waters downstream.52 They also serve as sinks by sequestering or transforming materials such as nitrogen, nitrate, ammonium, and phosphorous compounds.53 These chemicals were shown to be removed or assimilated in non-floodplain wetlands through various studies, according to the Connectivity Report.54 Some wetlands are categorized as isolated wetlands; these wet- lands are not connected by surface water to a river, lake, ocean, or 45. Id. at 2-14. 46. Id. at ES-6. 47. Id. at 4-39. 48. Id. at 4-39. 49. Id. at 4-2. 50. CONNECTIVITY REPORT, supra note 34, at 4-22. 51. Id. at 4-23. 52. Id. at 4-26-7. 53. Id. at 4-27. 54. Id. at 4-29. 72 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 other body of water.55 Both floodplain and non-floodplain wetlands can include isolated wetlands56 that are completely surrounded by up- lands.57 Known in scientific literature as geographically isolated wet- lands,58 these are formed by natural forces that make depressions in the landscape where precipitation, nearby surface water, or ground- water create saturated soil conditions for hydric soils and hydro- phytic vegetation to develop.59 These wetlands have no apparent sur- face water outlets.60 These can be fed through groundwater hydrology or through intermittent or ephemeral hydrological connec- tions.61 Geographically isolated wetlands include prairie potholes, vernal pools, and playa lakes.62 Despite their apparent lack of surface connection, isolated wetlands are important because they contribute to generating water flow, re- taining nutrients and sediments, and supporting a rich array of biodi- versity.63 These geographically isolated wetlands can also maintain and improve the quality of traditional navigable waters through their capacity to retain nutrients and sediments, thus keeping those poten- tial pollutants out of traditionally navigable waters.64 Isolated wet- lands serve as important habitats for waterfowl, especially small, shal- low potholes, as they develop invertebrate populations earlier in the year than larger potholes, thus providing critical, early-foraging for migrating waterfowl according to studies done on prairie potholes in the Northern Plains states.65 55. Dennis Whigham & Thomas Jordan, Isolated Wetlands and Water Quality, 23(3) WETLANDS 541, 541 (2003). 56. CONNECTIVITY REPORT, supra note 34, at 2-8. 57. Charles R. Lane & Ellen D’Amico, Identification of Putative Geographically Isolated Wet- lands in the Conterminous United States, 52(3) J. AM. WATER RES. ASS’N 705 (2016). 58. Scientific literature notes to use caution with the term geographically isolated wetlands when interpreting connectivity because there is substantial variation between wetlands over time and wetlands themselves, as the degree of connectivity through surface and groundwater hydrologic flow paths change. John M. Marton et al., Geographically Isolated Wetlands are Im- portant Biogeochemical Reactors on the Landscape, 65(4) BIOSCIENCE 408, 409 (2015). See also CONNECTIVITY REPORT, supra note 34, at 4-38; Matthew J. Cohen et al., Do Geographically Isolated Wetlands Influence Landscape Functions, 113(8) PROC. NAT’L ACAD. SCIS. 1978, 1986 (2016). 59. Marton et al., supra note 58, at 408. 60. CONNECTIVITY REPORT, supra note 34, at 2-8. 61. Marton et al., supra note 58, at 414. 62. CONNECTIVITY REPORT, supra note 34, at ES-3; See Marton et al., supra note 58, at 408. 63. Cohen et al., supra note 58, at 1978. 64. Marton et al., supra note 58, at 410. 65. NAT’L RSCH. COUNCIL, supra note 7, at 156. 2025] Navigating Rough Waters After Sackett v. EPA 73 B. Ephemeral and Intermittent Streams Due to the Supreme Court’s focus on the need for continuous sur- face water connection to a traditionally navigable water to establish federal jurisdiction, any non-continuously flowing waters may fall into the abyss of lacking federal jurisdiction. In the first few months after the Sackett decision, EPA estimated the elimination of federal ju- risdiction would impact 1.2 to 4.9 million miles of the Nation’s ephem- eral streams.66 To start, we will offer some working definitions EPA uses for these non-continuous surface waters and then discuss their importance to the ecosystems they impact. Intermittent streams flow seasonally and may be fed by a mix of groundwater, smaller upstream waters, and precipitation.67 At certain times of the year, intermittent streams may be dry. By contrast, ephemeral streams are entirely dependent on precipitation.68 Ephemeral streams are ubiquitous, but fleeting. In- termittent and ephemeral streams are more of a dominant feature in arid landscapes and in the Midwest. EPA estimates that 59% of streams in the U.S. and over 81% in the arid and semi-arid Southwest are ephemeral or intermittent.69 Ac- cording to a comprehensive review published in 2008 by EPA, The Ecological and Hydrological Significance of Ephemeral and Intermit- tent Streams in the Arid and Semi-Arid American Southwest (2008 EPA Ephemeral Streams Report), ephemeral flows serve “a critical role in the protection and maintenance of water resources, human health, and the environment.”70 The Connectivity Report also discusses these features and concludes all streams—perennial, ephemeral, and intermittent—are “physi- cally, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits. . . .”71 Additionally, “[i]n- frequent, high magnitude [rain] events are especially important” for 66. U.S. Env’t Prot. Agency, Public Webinar: Updates on the Definition of “Waters of the United States,” YOUTUBE (Sept. 12, 2023), https://www.youtube.com/watch?v=lcCVelsAy2c [https:// perma.cc/67GC-TTY2]. 67. Learn About Streams, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa-404/learn- about-streams [https://perma.cc/762W-GXEX] (last updated Jan. 26, 2024). 68. Id. 69. This number as it relates to the U.S. excludes Alaska. The Southwest region includes Ari- zona, New Mexico, Nevada, Utah, Colorado and California. LAINIE R. LEVICK ET AL., U.S. ENV’T PROT. AGENCY, OFF. OF RSCH. AND DEV., EPA/600/R-08/134, THE ECOLOGICAL AND HYDROLOGICAL SIGNIFICANCE OF EPHEMERAL AND INTERMITTENT STREAMS IN THE ARID AND SEMI-ARID AMERICAN SOUTHWEST iii (2008). 70. Id. 71. CONNECTIVITY REPORT, supra note 34, at ES-2. 74 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 transporting materials from headwater streams in most river net- works, and the Connectivity Report notes ephemeral and intermittent streams as an example of such an event.72 The Connectivity Report highlights that stream channel networks and the watersheds they drain are “fundamentally cumulative in how they are formed and maintained.”73 Further, these cumulative effects are “exemplified by ephemeral flows in arid regions,” as they are key sources of flow for downstream waters and by the high rates of denitrification in head- waters.74 The 2008 EPA Ephemeral Streams Report highlights the importance of ephemeral and intermittent streams in groundwater recharge, es- pecially in the arid and semi-arid southwest region of the U.S.75 As an estimated 81% of streams in this region are ephemeral or intermit- tent, they constitute a large portion of watersheds and greatly con- tribute to the hydrological, biogeochemical, and ecological health of the watershed.76 Most importantly, as identified by the 2008 EPA Ephemeral Streams Report, these water features “provide hydrologi- cal connectivity within a basin” connecting ephemeral, intermittent, and perennial stream segments, and thus “facilitating the movement of water, sediment, nutrients, debris, fish, wildlife, and plant[s] . . . .”77 They provide habitat for wildlife,78 and support a wide diversity of plant species.79 Additionally, ephemeral and intermittent streams in this region provide for basin groundwater recharge.80 While acknowledging impacts will vary by watershed, the Amicus Brief of Scientific Societies reflected on the research from the Connec- tivity Report. The Brief further argued that if intermittent and ephem- eral streams and their adjacent wetlands lost CWA Protections under Sackett, it would contribute to “serious negative water quality im- pacts.”81 72. Id. at ES-8. 73. Water that does not evaporate, is not taken up by organisms, or is not stored in the soil moves downstream through flow or channels. This forms into concentrated water flow that carries sediment, chemicals, and organisms. As flows from multiple channels combine into larger ones, these effects are magnified. Id. at 1-10. 74. Id. 75. LEVICK ET AL., supra note 69, at 22. 76. Id. at iii. 77. Id. at 64. 78. Id. 79. Id. at 65. 80. Id. at 64. 81. Amicus Brief of Scientific Societies, supra note 28, at 20. 2025] Navigating Rough Waters After Sackett v. EPA 75 In 2024, Brinkerhoff and team published research from a first-of- its-kind model of ephemeral streams that is consistent with the con- cerns raised by the Amicus Brief of Scientific Societies. Brinkerhoff and team developed a model “to quantify ephemeral stream contribu- tions to river systems, defined as the percentage of river water that enters the river system through an upstream ephemeral catchment under mean annual conditions.”82 Their model evaluated water in the contiguous United States network of more than 20 million rivers, lakes, and reservoirs, and found that “ephemeral streams contribute, on average, 55% of the discharge exported from regional river sys- tems, as defined by the United States Geological Survey.”83 In other words, more than half of the flow in a navigable river could be coming from ephemeral streams that are transporting precipitation to the river. These streams also carry nutrients, sediments, and pollutants. The researchers concluded that: “Nonperennial rivers (in particular, ephemeral streams) disproportionately influence river water compo- sition along the entire drainage network, from small headwaters that are almost entirely nonperennial all the way to the major navigable mainstems of the HUC4 river systems in this study.”84 Thus, losing federal jurisdiction over ephemeral streams impacts downstream wa- ter quality.85 In the next section, we will discuss the importance of wetlands and ephemeral and intermittent streams in different parts of the United States. C. Importance and Vital Functions in Wet and Arid Regions While Sackett will have a nationwide impact, it will vary depending on the water resources of specific locations. To explore this concept, we contrast the water resources available in the predominantly wet region of the Great Lakes with the predominantly arid region of the Southwest. We selected Wisconsin to serve as an example from the Great Lakes region. We contrast that with New Mexico to serve as an example of the desert Southwest region which is dominated by ephemeral streams and water scarcity. 82. Craig B. Brinkerhoff et al., Ephemeral Stream Water Contributions to United States Drain- age Networks, 384 SCI. 1476, 1476 (2024). 83. Id. 84. Id. at 1482. 85. Id. 76 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 1. Great Lakes Region State Example: Wisconsin European settlers in Wisconsin encountered an abundance of wet- lands. Mirroring trends of pioneers across the greater U.S., they re- sponded by draining wetlands to convert to agriculture and other uses. The Wisconsin Department of Natural Resources (WDNR) esti- mates that by 1990, Wisconsin lost 46% of its 10 million acres of wet- lands.86 The WDNR further estimates that Wisconsin currently has approximately 5 million acres of wetlands remaining, covering about 15% of the state.87 There are various types of wetlands in Wisconsin including marshes, aquatic beds, sedge or wet meadows, scrub/shrub wetlands, and forested wetlands.88 These remaining wetlands provide vital functions including flood water control, improvements to water qual- ity, and habitat for fish and wildlife as well as recreation.89 For exam- ple, deer use wetlands frequently for food, water, and as a refuge to hide.90 Wetlands serve important flood retention and storage functions. In Wisconsin, according to NOAA, there were four flood events from 1980–2023 which resulted in a total estimated $5 billion to $10 billion worth of damages.91 Two of these floods were in the last five years (2019–2023) and resulted in an estimated total of $2 billion to $5 bil- lion in damages.92 These floods and flood-related damages are pre- dicted to increase with climate change. According to a 2021 Assess- ment Report by the Wisconsin Initiative on Climate Change Impacts, “average precipitation has increased 17% (about five inches) since 1950,” the southern part of Wisconsin has seen the highest increase 86. Wisconsin Wetland Dashboard, WIS. DEP’T OF NAT. RES., https://dnr.wiscon- sin.gov/topic/Wetlands/dashboard [https://perma.cc/BFS4-SLFW] (last visited Feb. 29, 2024); Wisconsin Wetlands: Acreage Facts, WIS. DEP’T NAT. RES., https://dnr.wisconsin.gov/topic/Wet- lands/acreagefacts.html [https://perma.cc/GB7A-7PNN] (last visited Feb. 29, 2024). 87. Wetland Ecology and Science, WIS. DEP’T OF NAT. RES. https://dnr.wiscon- sin.gov/topic/wetlands/ecology [https://perma.cc/5NVE-D6YJ] (last visited Feb. 29, 2024). 88. Wetland Types, WIS. DEP’T OF NAT. RES., https://dnr.wisconsin.gov/topic/Wet- lands/types.html [https://perma.cc/VM94-KL47] (last visited Dec. 28, 2023). 89. Wetland Ecology and Science, WIS. DEP’T OF NAT. RES., https://dnr.wiscon- sin.gov/topic/wetlands/ecology [https://perma.cc/5NVE-D6YJ] (last visited Feb. 29, 2024). 90. Tom Biebighauser, Wetlands for Whitetails, QUALITY WHITETAILS 36, 37 (2012). 91. Billion-Dollar Weather and Climate Disasters, Summary Stats, NAT’L CTRS. FOR ENV’T INFO., NAT’L OCEANIC AND ATMOSPHERIC ADMIN., https://www.ncei.noaa.gov/access/billions/summary- stats [https://perma.cc/M52S-ZTE2]. 92. Id. 2025] Navigating Rough Waters After Sackett v. EPA 77 in precipitation, and “very extreme precipitation events will increase in the future.”93 Various actors play a role in Wisconsin’s wetland management. The U.S. Army Corps of Engineers (USACE) administers the Section 404 wetlands permitting program in Wisconsin. Wisconsin has enacted further wetland permitting at the state level, which works in conjunc- tion with and goes further than the Section 404 permitting program to cover more waters.94 To identify Wisconsin’s wetlands, the Wiscon- sin legislature established the Wisconsin Wetlands Inventory in 1978.95 The WDNR completed the first inventory in 198496 which showed, based on aerial photographs from 1978–1979, approxi- mately 5.3 million acres of wetlands in the state.97 It is important to note that wetlands less than two or five acres, depending on the county, were not included; since the photographs were taken in the summer, some wetlands, especially in the northern counties, were missed because of difficulty in interpretation due to leaf cover.98 The maps show graphic representations of the type, size, and location of wetlands in the state.99 In 1991, Wisconsin adopted the Nation’s first water quality stand- ards for wetlands which apply to “all department regulatory, plan- ning, resource management, liaison and financial aid determinations that affect wetlands.”100 These were enacted to protect water quality related functions and values including sediment and pollution atten- uation, storm and flood water retention, hydrological cycle mainte- nance, shoreline protection against erosion, biological diversity and production, and human uses such as recreation.101 Under Wisconsin’s wetland permitting program, no person may discharge dredged or fill material into a wetland unless it is authorized by a wetland permit or fits into an exemption.102 Wisconsin defines wetlands in statute as “an 93. WISCONSIN INITIATIVE ON CLIMATE CHANGE IMPACTS, WISCONSIN’S CHANGING CLIMATE: IMPACTS AND SOLUTIONS FOR A WARMER CLIMATE 6 (2022). 94. Michael J. Cain, Reversing the Loss of Our Nation’s Wetlands, 32 NAT’L WETLANDS NEWSL. no. 2 (Env’t L. Inst., Wash., D.C.), 2010, at 17. 95. Act effective May 19, 1978, ch. 374, 1977 Wis. 1439; Cain, supra note 94, at 17. 96. Wetland Mapping, WIS. DEP’T OF NAT. RES., https://dnr.wisconsin.gov/topic/Wetlands/in- ventory.html [https://perma.cc/GAD7-CFQ9] (last visited Jan. 29, 2024). 97. Wisconsin Wetlands: Acreage Facts, WIS. DEP’T OF NAT. RES., https://dnr.wiscon- sin.gov/topic/Wetlands/acreagefacts.html [https://perma.cc/N7SN-FSNW] (last visited Jan. 29, 2024). 98. Id. 99. Id. This wetland mapping is codified in WIS. STAT. § 23.32 (2021–2022). 100. WIS. ADMIN. CODE NR § 103.06 (2015); Cain, supra note 94, at 17–18. 101. WIS. ADMIN. CODE NR § 103.01(3) (2015). 102. WIS. STAT. § 281.36(3b)(b) (2021–2022). 78 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 area where water is at, near, or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions.”103 In 2000, Wisconsin also adopted a wetland mitigation program.104 In 2001, after the Supreme Court in Solid Waste Agency of North Cook County. v. U.S. Army Corps of Engineers (SWANCC) left isolated wetlands unprotected under the CWA,105 Wisconsin took action to fill the gap. The Wisconsin legislature recognized the importance of iso- lated wetlands and unanimously passed Act 6 in 2001.106 This Act es- tablished state regulation over all wetlands and restored state author- ity over nonfederal wetlands which included isolated wetlands.107 From 2001 until 2018, Wisconsin had regulatory control over all wetlands within the state. This was the status quo in Wisconsin until the Wisconsin legislature passed Act 183, effective in 2018, which added a permit exemption for nonfederal wetlands that met certain requirements that differ for urban versus rural areas.108 While Wis- consin still has a broad definition of wetlands, some human activity in nonfederal wetlands in Wisconsin may qualify for an exemption and be filled without any search for alternatives to avoid harming wet- lands or mitigation to offset the harm. To obtain a nonfederal wetland exemption, the applicant must ob- tain a Jurisdictional Determination (JD) from the USACE so the WDNR has evidence that the wetland is not subject to federal jurisdiction.109 103. WIS. STAT. § 281.01(21) (2021–2022); WIS. STAT. § 23.32(1) (2021–2022). 104. Act of May 10, 2000, ch. 147, 1999 Wis. 1; see also WIS. STAT. § 281.37 (2021–2022). An- other aspect of Wisconsin’s wetland program work is the Wisconsin Wetland Conservation Trust (WWCT), which began in November 2014, and sells wetland credits to permittees who need to offset authorized wetland impacts. See Wisconsin Wetland Conservation Trust, WIS. DEP’T OF NAT. RES., https://dnr.wisconsin.gov/topic/Wetlands/wwct [https://perma.cc/XC6M-9VYR] (last visited Jan. 19, 2024). 105. Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 (2001). 106. Act of May 7, 2001, ch. 6, 2001 Wis. 1 Spec. Sess.; WIS.’S GREEN FIRE, WETLANDS AND WATERWAYS IN WISCONSIN: NAVIGATING CHANGES TO THE FEDERAL WATERS OF THE UNITED STATES (WOTUS) RULE (2021), at 6, https://wigreenfire.org/2019/wp-content/up- loads/2021/05/WGF-Opp-Now-Waters-of-the-United-States-Final-May-10-2021.pdf [https://perma.cc/LP2K-EJN9]. 107. Id. 108. Act of Mar. 28, 2018, ch. 183, 2017 Wis. 1; WIS. LEGIS. COUNCIL, IM-2023-07, FEDERAL JURISDICTION OVER WETLANDS: RECENT DEVELOPMENTS AND THEIR IMPACTS IN WISCONSIN 2, 5 (2023), https://docs.legis.wisconsin.gov/misc/lc/information_memos/2023/im_2023_07 [https://perma.cc/Y2QW-ZJRN]. 109. Wetland Permit Exemptions, WIS. DEP’T OF NAT. RES., https://dnr.wiscon- sin.gov/topic/Wetlands/permits/exemptions.html [https://perma.cc/636M-SQWX] (last vis- ited Jan. 19, 2024). 2025] Navigating Rough Waters After Sackett v. EPA 79 In urban areas, an exemption to the wetland permit may be granted if the proposed project does not affect more than one acre of wetland per parcel, does not affect a rare and high-quality wetland, and the project is in compliance with applicable stormwater zoning and per- mits.110 An exemption may be granted in rural areas if the proposed project does not affect more than three acres of wetland per parcel, does not affect a rare and high-quality wetland, and the project is for a structure—such as a building, driveway, or road—with an agricul- tural purpose.111 Since the exemptions for nonfederal wetlands went into effect in Wisconsin, there has been an increase in the number of acres of wet- lands permanently filled (Figure 1). As shown above, the number of acres of nonfederal wetlands filled (without any mitigation to offset the losses) has risen significantly each year since enactment. In 2018, there were less than three acres filled, and by 2020, twenty-seven acres of wetlands were filled. In 2022, forty acres were filled. Given the significant reduction in federal jurisdiction over wetlands post-Sackett, there will be more nonfederal wetlands in Wisconsin that may be filled through these exemptions. 110. WIS. STAT. § 281.36(4n)(b) (2021–2022); see also Wetland Permit Exemptions, supra note 109. 111. WIS. STAT. § 281.36(4n)(c) (2021–2022); see also Wetland Permit Exemptions, supra note 109. 80 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 2. Southwest Region State Example: New Mexico Although there are far fewer acres of wetlands in the arid Southwest than in the Great Lakes region of the U.S., wetlands serve vital func- tions in this water-stressed region. Wetlands supply groundwater systems and serve as ecosystems and habitats for wildlife. T.A. Minck- ley et al. observed that wetlands in arid and semi-arid regions are “globally recognized as priority environments for conservation” be- cause of the high numbers of unique local species inhabiting them, their role as a key stopover for migrating species, and their im- portance for daily water use by upland animals.112 New Mexico is one of the driest states in the U.S., with an average of less than twenty inches of annual precipitation.113 New Mexican law defines “wetlands” as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to sup- port, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions in New Mexico.”114 Wetland types in New Mexico include “headwater wetlands, forested wetlands, bottomland shrublands, marshes, fens, wet and salt meadows, mineral flats, shallow ponds, riparian wet- lands, and playa wetlands.”115 Wetlands, and specific types of wet- lands such as prairie potholes, playa lakes, and wet meadows, are in- cluded in New Mexico’s statutory definition of “surface water(s) of the State.”116 As of 2019, there were around 845,000 acres of freshwater wet- lands in New Mexico according to a comment submitted by the New Mexico Environment Department on the 2019 proposed rule defining the scope of waters federally regulated under the CWA.117 112. T.A. Minckley et al., The Relevance of Wetland Conservation in Arid Regions: A Re-exami- nation of Communities in the American Southwest, 88 J. ARID ENV’TS 213, 213 (2013). 113. N.M. Env’t Dep’t, Comment Letter on Proposed Rule Defining the Scope of Waters Feder- ally Regulated Under the Clean Water Act 2 (Apr. 15, 2019), https://www.env.nm.gov/wp-con- tent/uploads/2019/04/2019-04-15-Final-NMED-WOTUS-Comments-v2.pdf [https://perma.cc/DH3C-CBLJ]. 114. N.M. ADMIN. CODE § 20.6.4.7(W)(4) (2022). 115. Wading into the Wetlands of New Mexico, N.M. ENV’T DEPT. & ST. MARY’S UNIV. OF MINN. GEOSPATIAL SERVS. (Oct. 4, 2024), https://storymaps.arcgis.com/stories/81df9f1c7b474678953 77e9772964d07 [On File with the Columbia Journal of Environmental Law]. 116. N.M. ADMIN. CODE § 20.6.4.7(S)(5) (2022). 117. N.M. Env’t Dep’t, supra note 113, at 2. This 2019 rule went into effect on October 22, 2019 and repealed the 2015 Clean Water Rule, recodifying the pre-2015 regulations. Definition of “Waters of the United States,”: Recodification of Pre-Existing Rules, 84 Fed. Reg. 56626 (Oct. 22, 2019) (to be codified at 33 C.F.R pt. 328 and 40 C.F.R pts. 110, 112, 116–17, 122, 230, 232, 300, 302, and 401). 2025] Navigating Rough Waters After Sackett v. EPA 81 Surface water features in the arid southwest region are dominated by ephemeral streams. In New Mexico, about 93% of the state’s streams and rivers are intermittent or ephemeral.118 Due to the ruling in Sackett, the CWA no longer covers ephemeral streams.119 This leaves 93% of New Mexico’s streams and rivers without CWA protec- tions.120 In 2019, the New Mexico Environment Department opposed a similar rule, arguing that removing ephemeral and intermittent streams from CWA protections due to their lack of surface connectiv- ity is not based in science.121 The agency stated these streams are “fundamental to maintaining water quality and overall watershed function,” especially in these arid and semi-arid regions that rely on such streams for the “hydrological, biogeochemical and ecological functioning of a watershed.”122 New Mexico cannot rely on a WOTUS definition that limits federal jurisdiction based on continuous surface connectivity as this leaves many of the state’s waters vulnerable.123 New Mexico’s waters are also predicted to be increasingly threat- ened due to climate change. New Mexico’s annual mean temperature is estimated to increase three to seven degrees Fahrenheit compared to the twentieth century.124 With warming temperatures, increasing amounts of New Mexico’s waters are drying up, which will strain the state’s already water-stressed systems even further.125 Under a NOAA-funded analysis, predictions for the years 2041–2060 estimate that the Southwest will see the largest percent change in water- stressed areas in the U.S. when compared to the 1900–1970 time pe- riod.126 Despite the variety of factors indicating the importance of wetlands and ephemeral streams, New Mexico does not have a wetlands per- mitting program and instead entirely relies on the USACE and EPA for wetlands regulation under CWA Section 404.127 118. N.M. Env’t Dep’t, supra note 113, at 2. 119. Id. at 6. 120. Id. at 2. 121. Id. at 5. 122. Id. 123. Id. at 2. 124. Climate Change and New Mexico’s Water Resources: A 50-Year Outlook, 22 N.M. EARTH MATTERS 1 (N.M. Bureau of Geology & Mineral Res., Socorro, N.M. 2022), at 1. 125. N.M. Env’t Dep’t, supra note 113, at 5. 126. Rebecca Lindsey, Climate Change to Increase Water Stress in Many Parts of the U.S., NAT’L OCEANIC & ATMOSPHERIC ADMIN. (2013), https://www.climate.gov/news-features/featured-im- ages/climate-change-increase-water-stress-many-parts-us [https://perma.cc/L92S-D8NJ]. 127. Dredge and Fill Activities, N.M. ENV’T DEP’T, https://www.env.nm.gov/surface-water- quality/dredgeandfillactivities/ [https://perma.cc/4USW-UUNL] (last visited June 6, 2024). 82 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 New Mexico’s Surface Water Quality Bureau started a non-regula- tory wetlands program in 2003, aiming to develop a comprehensive wetland planning, monitoring and assessment, restoration, and pro- tection program.128 According to the 2021 Wetlands Program Plan for New Mexico, the current progress of their wetlands program includes: (1) continuing to expand the wetlands inventory and wetlands classi- fication; (2) documenting wetland gains and losses; (3) identifying vulnerable wetland types, developing strategies to anticipate poten- tial sources of stress, and creating/maintaining resilience of these wetland/riparian systems confronted by the effects of a drying cli- mate; and (4) documenting the results of wetland restoration projects and techniques for restoration.129 There is no current state permit re- quired for dredging or filling wetlands.130 Therefore, the limited reach of federal jurisdiction after Sackett leaves many New Mexican wetlands and ephemeral waters without federal regulatory protection. In recognition of this vulnerability after Sackett, American Rivers, a nonprofit environmental advocacy group, highlighted the issue in its 2024 annual list of America’s Most Endan- gered Rivers.131 They listed New Mexico’s rivers as first on the list of America’s Most Endangered Rivers of 2024.132 The Amicus Brief of Scientific Societies discussed how the impacts of the Sackett decision would be the most felt in the Southwest arid regions of the U.S., using New Mexico’s Rio Salado Watershed, a tribu- tary of the Rio Grande, as an example.133 In this watershed, the Brief estimated wetland jurisdiction would likely decrease by more than 50%, and stream jurisdiction by more than 90%.134 This reduction in 128. Wetlands Projects, N.M. ENV’T DEP’T, https://www.env.nm.gov/surface-water-qual- ity/wetlands-projects/ [https://perma.cc/T74P-P66P] (last visited June 19, 2024). 129. SURFACE WATER QUALITY BUREAU, N.M. ENV’T DEP’T, 2021 WETLANDS PROGRAM PLAN FOR NEW MEXICO 3 (2021), https://www.env.nm.gov/surface-water-quality/wp-content/uploads/sites/ 18/2022/01/2021-New-Mexico-Wetlands-Program-Plan.pdf [https://perma.cc/MT3G-68RE]. The 2021 Wetlands Program Plan is the most recent of a periodically updated report outlining their achievements made since the original plan was approved in 2010 by the EPA, and lays out a framework for the next five years. 130. Id. 131. AM. RIVERS, AMERICA’S MOST ENDANGERED RIVERS OF 2024 (2024), https://www.american- rivers.org/wp-content/uploads/2024/04/AmericasMostEndangeredRivers%C2%AEof2024 Report.pdf [https://perma.cc/G29F-CB38]. 132. Id.; AM. RIVERS, MOST ENDANGERED RIVERS REPORT 2024 NAMES RIVERS OF NEW MEXICO AS #1 (April 16, 2024), https://www.americanrivers.org/media-item/most-endangered-rivers-re- port-2024-names-rivers-of-new-mexico-1/ [https://perma.cc/NZX2-CPQH]. 133. Amicus Brief of Scientific Societies, supra note 28, at 24 (“[This watershed has] a high proportion of ephemeral streams.”). 134. Id. at 25. 2025] Navigating Rough Waters After Sackett v. EPA 83 jurisdiction for important watersheds, such as the Rio Salado, will fur- ther reduce vital flows to traditionally navigable waters, such as the Rio Grande, which provides irrigation and water for millions of peo- ple.135 This leaves these already water-stressed areas with fewer vital federal protections. The next section will discuss the importance of these water re- sources to tribes in the U.S. D. Importance to Tribes Indigenous peoples have a strong personal, cultural, and spiritual connection to water, according to the National Tribal Water Coun- cil.136 In 2021, the National Tribal Water Council submitted written comments during the federal-tribal consultation on defining federal jurisdiction over “Waters of the United States.”137 They asserted that no matter the size of the waterbody, be it an ocean or seep, the water is “treated with respect and dignity as a living entity and held sa- cred.”138 Additionally, Indigenous peoples’ view of connectivity be- tween waterbodies goes much further than the physical and hydro- logical connections and “stems from long-standing Indigenous knowledge of local ecosystems and organisms coupled with historical patterns of seasonal and subsistence-based movements,” according to Sulliván et al.139 The patchwork of vulnerable waters, including iso- lated, non-floodplain wetlands, are essential for animals and tribal hunting, gathering, and trapping.140 135. Id. 136. Nat’l Tribal Water Council, Notice of Consultation and Coordination on Revising the Def- inition of “Waters of the United States” 3 (Oct. 1, 2021), https://www7.nau.edu/itep/main/ ntwc/docs/Policy_Responses/NTWC-Early-Comment-on-Revised-Definition-of-WOTUS.pdf [On File with the Columbia Journal of Environmental Law]. The National Tribal Water Council was created in 2005 to advocate for the best interests of federally recognized Indian and Alaskan Native Tribes in matters regarding water. It is a technical and scientific body assisting the EPA, federally recognized Indian Tribes, Alaska Native Tribes, and associated tribal communities and tribal organizations, “with research and information for decision-making regarding water issues and water-related concerns that impact Indian and Alaska Native tribal members in Indian Country.” NAT’L TRIBAL WATER COUNCIL, NTWC Fact Sheet (May 2024), https://www7.nau.edu/ itep/main/ntwc/docs/Home/NTWC-Handout-5.30.24.pdf [On File with the Columbia Journal of Environmental Law]. 137. Nat’l Tribal Water Council, Notice of Consultation and Coordination on Revising the Def- inition of “Waters of the United States,” supra note 136. 138. Id. at 3. 139. S.M.P. Sulliván et al., Enhancing Water Protection on Tribal Lands, 22 FRONTIERS ECOLOGY & ENV’T, no.6, 2024, at 3. 140. Id. 84 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 Additionally, various plants in wetlands are important food and me- dicinal sources, and supply materials for traditional practices such as building materials, household goods, and spiritual ceremonies.141 Ac- cording to the Brief of Menominee Indian Tribe of Wisconsin and 17 Federally Recognized Tribes as Amici Curiae in Support of Respond- ents (Amicus Brief of Tribes) submitted in Sackett, various tribes in the Midwest count thousands of lakes, streams, wetlands, and the Great Lakes as an “integral part of their homes, critical to their culture and subsistence resources.”142 For each of the amici tribes, clean wa- ter and wetlands are vital to their physical and cultural survival.143 Wild rice, translated from Ojibwemowin144 as “manoomin,”145 grows in wetlands. Manoomin is a species native to the Great Lakes region and parts of Canada.146 It is unique to the Northern Great Lakes Region and grows nowhere else in the world.147 The grain is essential to the Anishinaabe, a group of Indigenous peoples in Canada and the U.S. that include the Odawa, Ojibwe, Potawatomi, and Algonquin peo- ples.148 Hosterman and team documented that manoomin is a sacred symbol that represents the Anishinaabe’s journey westward from the Atlantic Northeast as well as a symbol of “their relationship to the land and their identity as a culture.”149 It is a healthy, traditional food source and is used in various ceremonies.150 The grain is “highly sen- sitive to damage by flooding or washout” if wetlands upstream that aid in absorbing and decreasing flood flows are damaged or de- stroyed.151 Manoomin is also negatively impacted by pollution, par- ticularly sulfates that can be released through mining operations.152 141. Id. at 4. 142. Brief of Menominee Indian Tribe of Wisconsin and 17 Federally Recognized Tribes as Amici Curiae in Support of Respondents at 1, Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023) (No. 21-454). 143. Id. at 2. 144. Manoomin (Wild Rice), GREAT LAKES INDIAN FISH & WILDLIFE COMM’N, https://glifwc.org/WildRice/ [https://perma.cc/Y6P6-SNKP] (last visited Jan. 22, 2024). 145. Wetland Resources, BAD RIVER TRIBE, https://www.badriver-nsn.gov/wetland-re- sources/ [https://perma.cc/WVJ9-WQZ8] (last visited Dec. 29, 2023). 146. Manoomin (Wild Rice), MICH. SEA GRANT, https://www.michiganseagrant.org/topics/eco- systems-and-habitats/native-species-and-biodiversity/manoomin-wild-rice/ [https://perma.cc/4TXF-XMU8] (last visited Dec. 29, 2023). 147. Amicus Brief of Tribes, supra note 142, at 5. 148. Heather Hosterman et al., Lake Superior Manoomin Cultural and Ecosystem Characteriza- tion Study, 28 ECOLOGY & SOC’Y, Sep. 2023, at 1. 149. Id. at 1. 150. Id. 151. Amicus Brief of Tribes, supra note 142, at 5. 152. Id. 2025] Navigating Rough Waters After Sackett v. EPA 85 Manoomin is decreasing in Wisconsin and is one of the species most vulnerable to climate change.153 According to the Bad River Band of Lake Superior Chippewa Indians in northern Wisconsin, their lands include large beds of manoomin on the Kakagon-Bad River sloughs on Lake Superior.154 The Kakagon- Bad River sloughs comprise 13% of coastal wetlands in the Lake Su- perior Basin.155 These sloughs are internationally recognized for their ecological and cultural importance.156 In a 2021 comment letter to the federal government regarding the scope of federal protection of wet- lands, the Bad River Band stated that the water resources within their reservation and “the food and medicine supported by them are the foundation for why the Bad River Reservation was established where it is, and the health of our peoples and others are dependent on the quality and quantity of connected waters.”157 Ephemeral and intermittent streams are also vital to tribes. Accord- ing to the Amicus Brief of Tribes, in the Southwest region of the U.S., the Tohono O’odham Nation, the Pascua Yaqui Tribe, the Navajo Na- tion, and the Pueblo of Laguna rely on these ephemeral and intermit- tent streams to sustain their culture, crops, and homes.158 The Pueblo of Laguna, located in the K’awaika homeland in west-central New Mexico, rely on a large network of ephemeral and intermittent streams connected to the Rio Puerco, one of the largest tributaries in the middle of the Rio Grande.159 Of the 1,416 miles of streams in the Pueblo’s territory, 79% are ephemeral, 18% are intermittent, and 3% are perennial.160 The Amicus Brief of Tribes discusses how many of these waters are “threatened by upstream mining and other activities that could pollute or destroy the Pueblo’s scarce waters in the absence of the Clean Water Act.”161 The Pueblo rely on and use tools under the 153. GREAT LAKES INDIAN FISH AND WILDLIFE COMM’N, CLIMATE CHANGE VULNERABILITY ASSESSMENT: INTEGRATING SCI. AND TRADITIONAL ECOLOGICAL KNOWLEDGE 28 (Apr. 2018); WIS. INITIATIVE ON CLIMATE CHANGE IMPACTS, WISCONSIN’S CHANGING CLIMATE: IMPACTS AND SOLUTIONS FOR A WARMER CLIMATE (2022), at 34. 154. Wetland Resources, BAD RIVER TRIBE, https://www.badriver-nsn.gov/wetland-re- sources/ [https://perma.cc/DE9X-HJ2Y] (last visited Dec. 29, 2023). 155. Bad River Band of Lake Superior Tribe of Chippewa Indians, Tribal Comments as Consul- tation on Waters of the United States (WOTUS) Rulemaking 1 (Oct. 4, 2021), https:// www.epa.gov/system/files/documents/2021-11/letter1.pdf [https://perma.cc/YX8C-QQZH]. 156. Wetland Resources, supra note 154. 157. Bad River Band of Lake Superior Tribe of Chippewa Indians, Tribal Comments, supra note 155, at 1. 158. Amicus Brief of Tribes, supra note 142, at 1. 159. Id. at 9–10. 160. Id. 161. Id. 86 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 CWA to protect their waters from discharges from upstream mines.162 They argue in the brief that reduced federal protections will limit the Pueblo’s ability to use such regulation to ensure upstream polluters comply with the Pueblo’s water quality standards.163 Thus, wetlands and ephemeral and intermittent streams are vital to the continued health and quantity of water resources available to tribes. In the next section, we discuss the protections afforded to wetlands and streams under the CWA and ambiguities arising from the fluctu- ating definition of WOTUS through four U.S. Supreme Court cases. III. WETLAND AND STREAM PROTECTIONS UNDER THE CLEAN WATER ACT: DEFINING “NAVIGABILITY” Congress passed the CWA in 1972, amending the Federal Water Pol- lution Control Act,164 in response to growing awareness over environ- mental pollution and nationally-shocking events such as Ohio’s Cuya- hoga River catching on fire in 1969.165 The CWA’s primary purpose is to “restore and maintain the chemical, physical, and biological integ- rity of the Nation’s waters.”166 Among other things, the CWA requires states to establish water quality standards for waterbodies and estab- lishes federal jurisdiction over “navigable waters.”167 The CWA de- fines “navigable waters” as “waters of the United States” (WOTUS).168 The Act does not offer any further definition of what Congress meant 162. Id. The Pueblo of Laguna is one of eighty-four Tribes authorized as TAS under CWA Sec- tion 401 and is one of fifty Tribes that has EPA-approved water quality standards. EPA Actions on Tribal Water Quality Standards and Contacts, U.S. ENV’T PROT. AGENCY, https://www. epa.gov/wqs-tech/epa-actions-tribal-water-quality-standards-and-contacts [https://perma.cc/U7UV-9HWT] (last updated May 3, 2024). 163. Amicus Brief of Tribes, supra note 142, at 10–11. 164. 33 U.S.C. §§ 1251–1389. 165. History of the Clean Water Act, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/laws-reg- ulations/history-clean-water-act [https://perma.cc/EX8L-6QZV] (last updated June 22, 2023); Lorraine Boissoneault, The Cuyahoga River Caught Fire At Least a Dozen Times, But No One Cared Until 1969, SMITHSONIAN MAG. (June 19, 2019), https://www.smithsonianmag.com/his- tory/cuyahoga-river-caught-fire-least-dozen-times-no-one-cared-until-1969-180972444/ [https://perma.cc/C5BC-7BFL]. Although the Cuyahoga River burned multiple times before the 1969 incident, this event drew national attention like none before, thus spurring movements. 166. 33 U.S.C. § 1251(a). 167. History of the Clean Water Act, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/laws-reg- ulations/history-clean-water-act [https://perma.cc/EX8L-6QZV] (last updated June 12, 2024). 168. 33 U.S.C. § 1362(7). 2025] Navigating Rough Waters After Sackett v. EPA 87 to include as WOTUS.169 Yet, a wide variety of CWA programs turn on whether the water is classified as WOTUS. While we focus on Section 404 wetland permits that regulate the discharge of dredge and fill ma- terial and state or tribal CWA Section 401 water quality certifications for federal licensing and permitting activities that could result in dis- charges, federal jurisdiction also impacts other programs, including programs focused on the designations of water quality standards, as- sessments to classify impaired waters on the CWA’s Section 303(d) list and plans to clean up those waters, and the regulation of pollutant discharges from point sources through Section 402 National Pollutant Discharge Elimination System permits.170 Thus, the meaning of WOTUS has dramatic ripple effects for clean water, as it is the basis of federal jurisdiction for CWA programs and any state or tribal programs that implement federal requirements. Any non-WOTUS waters are only protected from discharges of pollu- tants or disposal of dredge and fill material in wetlands if there is an applicable state or tribal law. In simplistic terms, changes in the meaning of WOTUS that shrink federal jurisdiction simultaneously in- crease the burden on states and tribes to regulate in the absence of the federal government.171 The importance of the scope of WOTUS combined with Congress’ lack of clear direction has resulted in an ongoing push and pull be- tween the regulated community, EPA, and the USACE to create regu- lations that clarify the scope of WOTUS and, thus, the reach of the CWA. A locus of this regulatory tension has been on the mosquito- laden swamps some seek to drain to convert to new uses while others seek to maintain for their diverse values, as discussed above in Section I. A. CWA Section 404 Permits for Dredging and Filling WOTUS The CWA is the primary federal law that regulates wetlands and ephemeral and intermittent streams. Ephemeral and intermittent streams are offered federal regulatory protection if they are 169. About Waters of the United States, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/wotus/about-waters-united-states [https://perma.cc/33QY-LZS2] (last updated Oct. 10, 2023). 170. James McElfish, State Protection of Nonfederal Waters: Turbidity Continues, 52 ENV’T L. REP. 10679, 10679 (Sept. 2022). 171. Id. at 10679; REBECCA KIHSLINGER ET AL., FILLING THE GAPS: STRATEGIES FOR STATES/TRIBES FOR PROTECTION OF NON-WOTUS WATERS, ENV’T L. INST. 3 (May 2023), https:// www.eli.org/sites/default/files/files-pdf/Strategies%20for%20States-Tribes%20for%20Pro- tection%20of%20non-WOTUS%20waters%201.2.pdf [https://perma.cc/SYH5-5VDR]. 88 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 considered WOTUS. In the past, when federal agencies used a broader definition of WOTUS, such as the significant nexus test elaborated in Rapanos v. United States (2006), ephemeral and intermittent streams often were included as WOTUS.172 One of the most significant WOTUS management programs in the CWA lies in Section 404. Section 404 of the CWA establishes a permit- ting program to control the discharge of dredge or fill material into WOTUS, including wetlands.173 Regulated activities under a 404 per- mit encompass fill for buildings, water resource projects such as dams or levees, infrastructure such as highways and airports, mining pro- jects, and more.174 Congress exempted categories of activities, includ- ing certain farming and forestry practices such as plowing, seeding, minor drainage, and harvesting for the production of food, fiber, and forest products;175 and some construction or maintenance of roads.176 The two main federal agencies involved in the Section 404 program are EPA and the USACE.177 Several agreements in the 1980s between these two agencies served to define their respective responsibilities under Section 404.178 These include a 1989 Memorandum of Agree- ment (MOA) on enforcement of CWA Section 404.179 The USACE 172. Rapanos v. United States, 547 U.S. 715, 717 (2006) (syllabus). 173. Permit Program Under CWA Section 404, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404 [https://perma.cc/P 3C9-FWZ8] (last updated Apr. 11, 2024). 174. Id. 175. 33 U.S.C. § 1344(f)(1)(A). 176. 33 U.S.C. § 1344(f)(1)(E). 177. Permit Program Under CWA Section 404, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404 [https://perma.cc/P3C9-FWZ8] (last updated Apr. 11, 2024). 178. The Clean Water Act and the Army Corps of Engineers, U.S. ARMY CORPS ENG’RS (Oct. 2022), https://www.usace.army.mil/About/History/Historical-Vignettes/Civil-Engineering/155- Clean-Water-Act-Overview/ [On File with the Columbia Journal of Environmental Law]. 179. Enforcement Under CWA Section 404, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa- 404/enforcement-under-cwa-section-404 [https://perma.cc/42AR-3FUA] (last updated Mar. 26, 2024). According to the MOA, the EPA will conduct initial on-site investigations when it is efficient to do so in respect to the “available time, resources and/or expenditures.” However, “in the majority of enforcement cases the USACE, because it has more field resources, will con- duct initial investigations and use its authorities” as provided in the MOA. Under the MOA, the USACE will act as the lead agency for all USACE-issued permits and for unpermitted discharge violations that do not meet the criteria for sending it to the EPA. The USACE may also take action on a specific case if the EPA notifies the agency that, because of limited resources or other rea- sons, it will not take action on a certain case. The EPA will act as the lead agency for all unper- mitted discharge violations when the activity includes: “a) repeat violator(s), b) flagrant viola- tion(s), c) where the EPA requests a class of cases or a particular case; or d) the USACE recommends that an EPA administrative penalty action may be warranted.” The MOA also states 2025] Navigating Rough Waters After Sackett v. EPA 89 issues JDs on whether a specific proposed project involves a WOTUS regulated under Section 404.180 After the USACE determines it has federal jurisdiction, a project proponent will need to get a permit be- fore proceeding to dredge or fill a wetland.181 Further, the USACE is in charge of administering the day-to-day program including individual and general permit decisions; developing policy and guidance; and en- forcing Section 404 permitting provisions.182 EPA’s responsibilities include reviewing and commenting on individual permit applications; approving, overseeing, and delegating program responsibilities to state and tribal agencies; developing and interpreting policy, guid- ance, and environmental criteria used in evaluating permit applica- tions; determining the scope of geographic jurisdiction and applica- bility of exemptions; and enforcing Section 404 provisions.183 The U.S. Fish and Wildlife Service and the National Marine Fisheries Service also play a role in the Section 404 program. They evaluate the impacts of all new federal projects and federally-permitted projects on fish and wildlife.184 States have the option to assume certain CWA programs if they meet specific federal requirements and EPA delegates authority to the the EPA can request the USACE take action on a certain case. However, the USACE has a “right of first refusal.” If the USACE notifies the EPA that it will not take action due to limited staff resources or other reasons, the EPA may take action. Memorandum between the Dep’t of the Army and the Env’t Prot. Agency, U.S. ENV’T PROT. AGENCY (Jan. 1989), https://www. epa.gov/cwa-404/federal-enforcement-section-404-program-clean-water-act [https://perma.cc/N8NF-KBSA]. 180. How Wetlands are Defined and Identified Under CWA Section 404, U.S ENV’T PROT. AGENCY, https://www.epa.gov/cwa-404/how-wetlands-are-defined-and-identified-under-cwa-section- 404 [https://perma.cc/B5SS-NRYL] (last updated Apr. 6, 2023). 181. There are a variety of permits available including general and individual permits. The Secretary of the USACE issues general permits on a state, federal, or regional basis if the Secre- tary determines the activities will cause “only minimal adverse environmental effects when per- formed separately and will have only minimal cumulative adverse effect on the environment.” There are three types of general permits: Nationwide permits, Regional General permits, and Programmatic General permits. An individual, or standard, permit is issued for projects that have more than minimal individual or cumulative impacts, use additional environmental crite- ria, and include a more comprehensive public interest review. Therefore, a general permit al- lows specific activities to go forward with little to no delay as the process eliminates individual review. Regional and Programmatic General Permits, U.S. ARMY CORPS ENG’RS, https://www. usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Obtain-a-Per- mit/#RegProgPermits [On File with the Columbia Journal of Environmental Law] (last visited Jan. 11, 2024). 182. Permit Program Under CWA Section 404, U.S. ENV’T PROT. AGENCY, https: //www.epa.gov/cwa-404/permit-program-under-cwa-section-404 [https://perma.cc/P3C9- FWZ8] (last updated Apr. 11, 2024). 183. Id. 184. Id. 90 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 state agency.185 Tribes also have the option to assume programs if they meet specific requirements and EPA delegates authority: Section 518(e) of the CWA authorizes EPA to treat tribes in a similar manner as states (TAS).186 When EPA approves a delegation of authority to a state or tribe to run the Section 404 program, the USACE stops pro- cessing the permits.187 An assumed program can be no less stringent than the federal requirements, therefore the CWA becomes a floor for the state or tribe’s 404 program.188 The purpose of state assumption of CWA programs is to give a more efficient permitting process to ad- dress both federal and state requirements while keeping at least the same level of protections as the federal program.189 Some states and tribes are well-situated to address local and re- gional management issues and to work with private landowners ef- fectively, provided they have built the institutional capacity to do so.190 However, for the 404 program, it is unusual for a state or tribe to assume the program. To date, no tribe has this authority and EPA has delegated authority for the 404 permit program to only two states: Michigan and New Jersey.191 For the vast majority of the coun- try and all of Indian Country (within tribal reservation boundaries), 185. Clean Water Act Section 404 State Assumption, ASS’N WETLAND MANAGERS, INC. (Nov. 2010), https://www.nawm.org/pdf_lib/cwa_section_404_state_assumption_factsheets.pdf [https://pe rma.cc/999P-NLNE]. 186. 33 U.S.C. § 1377(e). 187. CLEAN WATER ACT SECTION 404 STATE ASSUMPTION, ASS’N WETLAND MANAGERS, INC. (Nov. 2010), https://www.nawm.org/pdf_lib/cwa_section_404_state_assumption_factsheets.pdf [htt ps://perma.cc/999P-NLNE]. 188. Basic Information About Assumption Under CWA Section 404, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa404g/basic-information-about-assumption-under-cwa-section-404 [https://perma.cc/ST2N-QZGP] (last updated Oct. 4, 2023). 189. Susan Martin & Rachael Santana, State Assumption of the Clean Water Act Section 404 Permitting Program: Part 1, An Overview, 95 ENV’T & LAND USE L. FLA. BAR J., no.1, 2021, at 38. 190. CLEAN WATER ACT SECTION 404 STATE ASSUMPTION, ASS’N WETLAND MANAGERS, INC. (Nov. 2010), https://www.nawm.org/pdf_lib/cwa_section_404_state_assumption_factsheets.pdf [ht tps://perma.cc/999P-NLNE]. 191. U.S. Interactive Map of State and Tribal Assumption Under CWA Section 404, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa404g/us-interactive-map-state-and-tribal-assump- tion-under-cwa-section-404 [https://perma.cc/39PD-FG9D] (last updated Nov. 17, 2023). The EPA did previously approve a state 404 program for Florida in 2020. However, a federal court order in February 2024 divested the Florida Department of Environmental Protection of the authority to issue 404 permits. The state has appealed the decision. State 404 Program, FLA. DEP’T OF ENV’T PROT., https://floridadep.gov/water/submerged-lands-environmental-resour ces-coordination/content/state-404-program [https://perma.cc/A2M8-R9RV] (last updated May 5, 2024). 2025] Navigating Rough Waters After Sackett v. EPA 91 the USACE is responsible for processing requests for 404 permits to dredge or fill wetlands that are WOTUS.192 However, even without delegated authority for the 404 program, there are two ways states and tribes may exercise jurisdiction: they can pass state or tribal law defining a broader scope of water protec- tions beyond WOTUS and they can also issue or deny a certification that a project complies with state or tribal law. A Section 404 permit is not valid unless a state or tribe issues a wa- ter quality certification under CWA Section 401 or certification is waived.193 Given this, the primary way states and tribes weigh in on a USACE decision to permit wetland alterations under Section 404 is to review a proposed federal permit decision through the lens of their Section 401 certification authority. Under Section 401(a)(1) of the CWA, an “applicant for a Federal license or permit to conduct any ac- tivity . . . which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or . . . from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates . . .” that the discharge will comply with applicable water quality stand- ards, among other things.194 In other words, the applicant needs to obtain a certification from the state, authorized tribe, or other entity with jurisdiction over the navigable waters where the discharge will begin.195 A certifying au- thority (a state, an authorized tribe, EPA, or another entity) can grant, grant with conditions, deny, or waive certification under Section 401 of the CWA.196 All states are certifying authorities under Section 401. 192. Permit Program Under CWA Section 404, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404 [https://perma.cc/ P3C9-FWZ8] (last updated Apr. 11, 2024). 193. WIS. LEGIS. COUNCIL, INFORMATION MEMORANDUM: FEDERAL JURISDICTION OVER WETLANDS: RECENT DEVELOPMENTS AND THEIR IMPACTS IN WISCONSIN (Sept. 6, 2023), https://docs.legis.wiscon- sin.gov/misc/lc/information_memos/2023/im_2023_07 [https://perma.cc/QAV5-QHDR]. 194. 33 U.S.C. § 1341(a)(1). 195. Id.; Overview of CWA Section 401 Certification, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/cwa-401/overview-cwa-section-401-certification [https://perma.cc/6S QU-DJ7P] (last updated Nov. 27, 2023). 196. 33 U.S.C. § 1341(a)(1); LAURA GATZ, CONG. RSCH. SERV., R46615, CLEAN WATER ACT SECTION 401: OVERVIEW & RECENT DEVS. 2 (2022). An important aspect of 401 certification to highlight is the length of time allowed for the certification. If a certifying authority refuses or fails to act within a “reasonable period of time (which shall not exceed one year)” after the receipt of the request, the 401 certification requirements are waived. 33 U.S.C. § 1341(a)(1). 92 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 When Congress passed the CWA in 1972, they placed the water quality certification requirement in CWA Section 401.197 However, tribes are treated differently, and not all tribes are authorized to grant certifications under Section 401. It was not until 1987, when Con- gress amended the CWA with Section 501(e) that it authorized EPA to delegate authority to tribes to issue 401 water quality certifica- tions.198 As of January 31, 2024, EPA has authorized eighty-four tribes to administer water quality standards.199 These tribal water quality standards serve as the basis for many CWA programs, including Sec- tion 401, just like state water quality standards.200 Tribes with ap- proved water quality standards thereby have authorization to issue Section 401 certifications like a state.201 However, EPA has only ap- proved fifty of these tribes’ initial water quality standards and hence only these fifty tribes can effectively use a Section 401 certification to influence a proposed USACE decision to issue a 404 permit.202 Obtain- ing authority for Section 401 certifications and establishing water quality standards can be a powerful tool to protect waters from nega- tive impacts resulting from the construction or operation of a feder- ally licensed or permitted project.203 In May 2024, EPA finalized a rule revising the CWA’s water quality standards.204 This rule has three impacts: it (1) defines tribal reserved rights for purposes of the regulation; (2) establishes and clarifies state responsibilities in regard to tribal reserved rights in the water quality standards context; and (3) establishes and clarifies EPA’s responsibil- ities and oversight role in water quality standards.205 The new rule defines tribal reserved rights for purposes of the water quality 197. Clean Water Act Section 401 Water Quality Certification Improvement Rule, 88 Fed. Reg. 66558, 66559 (Sept. 27, 2023) (to be codified at 40 C.F.R. pts. 121, 122, 124). 198. 33 U.S.C. § 1377(e). 199. EPA Actions on Tribal Water Quality Standards and Contacts, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/wqs-tech/epa-actions-tribal-water-quality-standards-and-contacts [htt ps://perma.cc/34JH-GV3H] (last updated Jan. 31, 2024). 200. Federal Baseline Water Quality Standards for Indian Reservations, 88 Fed. Reg. 29496, 29497 (May 5, 2023) (to be codified at 40 C.F.R. pts. 131, 230, 233). 201. EPA Actions on Tribal Water Quality Standards and Contacts, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/wqs-tech/epa-actions-tribal-water-quality-standards-and-contacts [htt ps://perma.cc/34JH-GV3H] (last updated Jan. 31, 2024). 202. Fifty tribes have EPA-approved WQS. One tribe has WQS promulgated by the EPA. Id. 203. Clean Water Act Section 401 Water Quality Certification Improvement Rule, 88 Fed. Reg. 66558, 66558 (Sept. 27, 2023) (to be codified at 40 C.F.R. pts. 121, 122, 124). 204. This rule went into effect on June 3, 2024. Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights, 89 Fed. Reg. 35717, 35748 (May 2, 2024) (to be codified at 40 C.F.R. pt. 131). 205. Id. at 35718. 2025] Navigating Rough Waters After Sackett v. EPA 93 standards under the CWA as “any rights to CWA-protected aquatic and/or aquatic-dependent resources reserved by right holders, either expressly or implicitly, through Federal treaties, statutes, or executive orders.”206 Specifically, the rule requires that if a tribe asserts a tribal reserved right in writing to a state and EPA for consideration in estab- lishment of water quality standards: the state must, to the extent supported by available data and infor- mation: (1) take into consideration the use and value of its waters for protecting the Tribal reserved right in adopting or revising designated uses; (2) take into consideration the anticipated future exercise of the Tribal reserved right unsuppressed by water quality in establishing rel- evant WQS; and (3) establish water quality criteria to protect the Tribal reserved right where the state has adopted designated uses that either expressly incorporate protection of the Tribal reserved right or encom- pass the right.207 In other words, this new rule acts to offer more protection for tribes and gives them more footing in the regulatory scheme. This rule is not without its challenges. On May 28, 2024, eight states208 filed a complaint with the U.S. District Court for the District of North Dakota arguing the new rule “unlawfully recasts the CWA as a “Tribal Rights Act” and commandeers states to effectuate the new policy imposed unilaterally by the EPA.”209 The states seek to invali- date the rule and enjoin EPA from enforcing it.210 In response, twelve tribal nations, represented by the Native American Rights Fund and Earthjustice, filed a motion to intervene in defense of the new rule.211 This case is ongoing at the time of this Article. Section 401(d) directs states and authorized tribes to include con- ditions when granting a Section 401 certification, including “effluent limitations and other limitations, and monitoring requirements nec- essary to assure that the applicant for a Federal license or permit will comply with” other specific sections of the CWA, and with “any other 206. Id. 207. Id. 208. Plaintiff states are Idaho, North Dakota, Alaska, Iowa, Nebraska, South Carolina, South Dakota, and Wyoming. Complaint and Petition for Review, Idaho v. EPA, No. 1:24-cv-00100- DLH-CRH (D.N.D. May 28, 2024), ECF No.1. 209. Id. ¶ 4. 210. Id. ¶ 14. 211. Tribes’ Memorandum in Support of Motion to Intervene, Idaho v. EPA, No. 1:24-cv- 00100-DLH-CRH, ECF No. 15. Initially, seven tribes intervened in June 2024. Five more tribes joined in July 2024. Tribes’ Amended Unopposed Motion to Intervene, Idaho v. EPA, No. 1:24- cv-00100-DLH-CRH, ECF No. 19; Tribes Move to Defend EPA’s Tribal Water Rights Rule (State of Idaho v. EPA), NATIVE AM. RTS. FUND, https://narf.org/cases/epa-water-rights-rule/ [https://pe rma.cc/Q3PP-K8GX] (last visited Oct. 16, 2024). 94 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 appropriate requirement of State law.”212 According to a 2015 report by the Congressional Research Service, state implementation of Sec- tion 401 varied because it was optional—states could waive the certi- fication.213 However, the report highlighted that many states have come to view Section 401 as an “important tool in their overall pro- grams to protect the physical and biological, in addition to chemical, integrity of their waters.”214 The report further attributed states using this authority to “tensions between state and federal agencies and regulated entities over the scope of the states’ Section 401 author- ity.”215 Additionally, Congress recognized that a 404 permit proposed out- side of and upstream from a state or tribe’s jurisdiction could impair the state or tribe’s water quality. Thus, Congress created opportuni- ties for the affected state or authorized tribe to object to the project and request a public hearing on a federal license or permit.216 If there is a hearing, the agency seeking to issue the federal license or permit— based on recommendations of the objecting state or tribe, EPA, and any other additional evidence—“shall condition such license or per- mit in such a manner as may be necessary to insure compliance with applicable water quality requirements.”217 However, “if the imposi- tion of conditions cannot insure such compliance” the “agency will not issue such license or permit.”218 In summary, in all but two states and in Indian Country, when a pro- ject proponent seeks to fill or discharge into a wetland that is WOTUS, they interact with USACE to receive a determination of federal juris- diction, and if that is positive, they apply to the USACE for a 404 per- mit. Every state and fifty tribes have the authority to grant, grant with conditions, deny, or waive a 401 certification for the project. If the project is on tribal lands where EPA has not authorized the tribe to issue a 401 certification or the project is in an area where the federal government has exclusive jurisdiction, EPA certifies compliance with 212. 33 U.S.C. § 1341(d); Clean Water Act Section 401 Water Quality Certification Improve- ment Rule, 88 Fed. Reg. 66558, 66558 (Sept. 27, 2023) (to be codified at 40 C.F.R. pts. 121, 122, 124). 213. CLAUDIA COPELAND, CONG. RSCH. SERV., 97-488, CLEAN WATER ACT SECTION 401: BACKGROUND & ISSUES 1 (2015). 214. Id. at 1. 215. Id. 216. 33 U.S.C. § 1341(a)(2); Clean Water Act Section 401 Water Quality Certification Improve- ment Rule, 88 Fed. Reg. at 66561. 217. 33 U.S.C. § 1341(a)(2). 218. Id. 2025] Navigating Rough Waters After Sackett v. EPA 95 Section 401.219 If a 401 certification is denied, the wetland project may not proceed. B. Defining WOTUS and the Road to Sackett Agency rules have played a very large role in attempting to clarify the scope of federal jurisdiction under the CWA. The USACE and EPA have used regulations to offer greater detail about how wetlands and non-continuous streams fit into WOTUS, and thus the Section 404 per- mit program. According to Professor Dave Owen, for years after the CWA was enacted in 1972, the regulation of small streams, including ephemeral and intermittent streams, was “largely nonexistent.”220 In 1974, the USACE published regulations to implement the Section 404 program, limiting it to the same waters that were being regulated under the Rivers and Harbors Act of 1899: “waters that are subject to the ebb and flow of the tide shoreward to their mean high water mark (mean higher water mark on the West Coast) and/or waters that are presently used, were used in the past, or are susceptible to use to transport interstate or foreign commerce.”221 This limited the pro- gram only to those waters traditionally navigable, thus not including isolated wetlands or ephemeral and intermittent streams. In 1975, in Natural Resources Defense Council, Inc. v. Callaway, the District Court for the District of Columbia held that this definition was too narrow and that the term “navigable waters” in the CWA was not limited to the traditional tests of navigability.222 During this case, challengers to the rule expressed concerns over the need to “regulate the entire aquatic system,” including all wetlands that are a part of it and the tributary streams that feed into traditionally navigable waters.223 Pursuant to this ruling, the USACE published an interim final regu- lation in 1975 defining the term “navigable waters” to “include all coastal waters subject to the ebb and flow of the tide shoreward to their mean high water mark . . . and also to all wetlands, mudflats, swamps, and similar areas which are contiguous or adjacent to coastal 219. Clean Water Act Section 401 Water Quality Certification Improvement Rule, 88 Fed. Reg. at 66561; GATZ, supra note 196, at 2 n.12. 220. Dave Owen, Little Streams and Legal Transformations, 2017 UTAH L. REV. 1, 5 (2017). This article uses the term “little streams,” otherwise known as headwaters. Id. at n.15. A subset of these headwaters are ephemeral and intermittent streams. Id. at 7. 221. Regulatory Program of the Army Corps of Eng’rs, 42 Fed. Reg. 37122, 37123 (July 19, 1977). 222. Id. at 37124; Nat. Res. Def. Council, Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C. 1975). 223. Regulatory Program of the Army Corps of Eng’rs, 42 Fed. Reg. at 37123–4; See also Nat. Res. Def. Council, Inc. v. Callaway, 392 F.Supp. 685 (D.D.C. 1975). 96 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 waters.”224 With respect to the inland areas, the term, in part, would “extend to all rivers, lakes, and streams that are navigable waters of the United States, [and] to all tributaries of navigable waters of the United States.” The rule also extended “navigable waters” to “all con- tiguous or adjacent wetlands to these waters which are periodically inundated by freshwater, brackish water, or salt water and are char- acterized by the prevalence of aquatic vegetation that are capable of growth and reproduction.”225 This broadened the rule to cover adja- cent wetlands as defined. The 1975 regulation defined WOTUS in a way that included streams “up to their headwaters and landward to the ordinary high water mark.”226 It also stated, “permits would not be required for discharges beyond the ‘headwaters’ of a river or stream unless the interests of water quality required assertion of jurisdiction above the headwa- ters.”227 The rule defined headwaters as the “point on a stream be- yond which the flow . . . is normally less than five cubic feet per sec- ond.”228 For those other waters not defined in the regulation, such as “intermittent rivers, streams, tributaries and perched wetlands that are not continuous or adjacent to navigable waters identified,” the dis- trict engineer had the discretion to determine the necessary regula- tion for protecting water quality.229 In 1977, the USACE, along with EPA, the U.S. Department of the In- terior, and the U.S. Department of Agriculture, revised the 1975 defi- nition of WOTUS to expand federal jurisdiction by defining wetlands as: “those areas that are inundated or saturated by surface or ground- water at a frequency and duration sufficient to support, and that un- der normal circumstances do support, a prevalence of vegetation typ- ically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”230 Additionally, the 1977 regulation recognized that there are streams with “highly ir- regular flows,” like those that occur in the western U.S. whose 224. Permits for Activities in Navigable Waters or Ocean Waters, 40 Fed. Reg. 31320, 31320 (July 25, 1975). 225. Id. at 31320–21. 226. Id. at 31324. 227. Regulatory Program of the Army Corps of Eng’rs, 42 Fed. Reg. at 37124. 228. Permits for Activities in Navigable Waters or Ocean Waters, 40 Fed. Reg. at 31321. 229. Id. at 31325. 230. Regulatory Program of the Army Corps of Eng’rs, 42 Fed. Reg. at 37128; United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 124 (1985); The USACE uses the same definition as the EPA, but the EPA is the entity that has ultimate authority within the Executive Branch to define WOTUS. See Amicus Brief of Scientific Societies, supra note 28, at 5 n.3. See also NAT’L RSCH. COUNCIL, supra note 7, at 51. 2025] Navigating Rough Waters After Sackett v. EPA 97 headwaters are dry most of the year but still average an annual flow of five cubic feet per second because of “high volume flash flood type flows.”231 The 1977 regulation added an option, after notifying the Regional Administrator of EPA, for the district engineer to “establish the headwater based on median rather than the average flow.”232 In the 1977 regulation, the USACE issued nationwide permits for the discharge of dredge or fill material into non-tidal rivers, streams, and their impoundments including adjacent wetlands that are located above the headwaters.233 These permits provide legal cover for these activities, but they established only limited, largely suggested, re- quirements, and did not include reporting obligations.234 From 1977 onward, the definition of wetlands remained largely un- changed until the Supreme Court reviewed it in 1985 in United States v. Riverside Bayview Homes, Inc.235 The issue in Riverside Bayview Homes, Inc. was whether the CWA, along with specific regulations promulgated under its authority by the USACE, authorized the USACE to require a Michigan developer to get a Section 404 permit before discharging fill materials into wetlands adjacent to navigable bodies of water and their tributaries.236 Respondents, Riverside Bayview Homes, Inc., owned eighty acres of low-lying, marshy land in Michigan approximately one mile west from Lake St. Clair and “roughly paralleling the Clinton River.”237 The prop- erty was made up of a sixty-acre parcel, platted as a subdivision since 1916, and a partially adjoining twenty-acre parcel.238 In 1976, re- spondents began placing fill materials on their property to begin 231. Regulatory Program of the Army Corps of Eng’rs, 42 Fed. Reg. at 37129. 232. Id. (“A median flow of five cubic feet per second means that fifty percent of the time the flow is greater than five cubic feet per second and fifty percent of the time the flow is less than this value.”). As a refresher, the average or the arithmetic mean is the sum of a set of numbers divided by the number of values. The median is the exact middle number when arranged from smallest to largest. Anne Helmenstine, Median vs. Average – Know the Difference Between them, SCI. NOTES (August 9, 2022), https://sciencenotes.org/median-vs-average-know-the-difference- between-them/ [https://perma.cc/CR4S-5Q9R]. 233. Regulatory Program of the Army Corps of Eng’rs, 42 Fed. Reg. at 37130. 234. Owen, supra note 220, at 21. In the 1980s, some of these permits created Nationwide Permit 26. Id. at 25. This permit authorized discharges in headwaters or isolated waters. COPELAND, supra note 213, at 4. Nationwide permit 26’s approach was replaced in 2000 by sev- eral activity-based permits to authorize specific categories of activities instead of the acreage and geographic approach. Id. 235. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 124 (1985). 236. Id. at 123. 237. United States v. Riverside Bayview Homes, Inc., 729 F.2d 391, 392 (6th Cir. 1984) (deci- sion on review in Riverside Bayview Homes Inc., 474 U.S. 121 (1985)). 238. Riverside Bayview Homes, Inc., 729 F.2d at 392. 98 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 constructing a housing development.239 The USACE, believing the land was an adjacent wetland under the regulation defining WOTUS, filed suit in District Court, seeking to enjoin the respondent from fill- ing the property without permission from the USACE.240 The Supreme Court reversed a Sixth Circuit Court decision that ex- cluded “from the category of adjacent wetlands . . . wetlands that are not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation.”241 The Su- preme Court deferred to the agency and held that the USACE acted reasonably in interpreting the CWA to require permits for the dis- charge of materials into these adjacent wetlands.242 In reaching this holding, the Court determined the USACE acted reasonably when it concluded that adjacent wetlands are “inseparably bound up with the ‘waters’ of the United States . . . .”243 The administrative record showed that the USACE had determined that adjacent wetlands may affect the water quality of waterbodies and may serve significant bio- logical and ecological functions such as habitat of spawning and other activities, food chain production, and flooding and erosion controls.244 The USACE further determined that adjacent wetlands that do not contain water sourced from the adjacent bodies of water may also serve vital functions to the aquatic environment. Again, the Court stated it could not find these judgements unreasonable, and so con- cluded that a WOTUS definition that encompasses all wetlands adja- cent to other water bodies is a permissible interpretation of the CWA.245 Riverside Bayview Homes clarified that wetlands adjacent to waters navigable in fact are included in WOTUS and, therefore, cov- ered by the CWA.246 239. Riverside Bayview Homes, Inc., 474 U.S. at 125. 240. The District Court held that the part of the property lying below 575.5 feet above sea level was a covered wetland, and enjoined respondent from filling it without a permit. Respond- ent appealed, and the Court of Appeals remanded for consideration of the effect of the 1977 amendments to WOTUS. On remand, the District Court again held the property to be a wetland subject to the Corps' permit authority. Respondent appealed again, and the Sixth Circuit re- versed. The Court construed the Corps' regulation to exclude wetlands that were not subject to flooding by adjacent navigable waters at a frequency sufficient to support the growth of aquatic vegetation from the category of adjacent wetlands and thus from "waters of the United States." Id. at 124. 241. Id. at 125. 242. Id. at 122. 243. Id. at 134. 244. Id. at 134–35. 245. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135 (1985). 246. Id. at 122. 2025] Navigating Rough Waters After Sackett v. EPA 99 The following year, in 1986, the USACE issued a final rule in which it extended CWA Section 404 to intrastate waters that are or would be used as habitat for birds that are covered by the Migratory Bird Trea- ties (known as the “Migratory Bird Rule”).247 This rule took center stage in the next U.S. Supreme Court review of the reach of federal ju- risdiction over wetlands in SWANCC in 2001.248 In that case, the USACE applied the Migratory Bird Rule to extend federal permitting authority over an abandoned sand and gravel pit, which had evolved into a forest with scattered permanent and seasonal ponds on peti- tioner’s property in Illinois.249 The Court, in a five to four decision, held that the USACE’s application of the Migratory Bird Rule to the Solid Waste Agency of Northern Cook County’s property exceeded its authority under the CWA.250 The SWANCC decision clarified the CWA did not extend to “nonnavigable, isolated, intrastate waters” simply because of their use by migratory birds.251 Following SWANCC, the USACE did not promulgate a final rule change although there was proposed rulemaking in 2003.252 Because SWANCC did not directly address tributaries, the USACE “notified its field staff that they ‘should continue to assert jurisdiction over tradi- tional navigable waters . . . and generally speaking, their tributary sys- tems (and adjacent wetlands).’”253 Also, since SWANCC did not over- rule Riverside Bayview Holmes, Inc., the USACE continued “to assert jurisdiction over waters ‘neighboring’ traditional navigable waters and their tributaries.”254 Thus, the USACE continued to define “adja- cent wetlands” broadly.255 The U.S. Supreme Court next interpreted WOTUS in Rapanos v. United States in 2006, resulting in a plurality decision with five opin- ions.256 This case involved a consolidation of cases to determine if 247. Final Rule for Regulatory Programs of the Corps of Eng’rs, 51 Fed. Reg. 41206, 41217 (Nov. 13, 1986); See also Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs (SWANCC), 531 U.S. 159, 164 (2001). 248. SWANCC, 531 U.S. at 159. 249. Id. at 162–63. 250. Id. at 174. 251. Id. at 172. 252. Rapanos v. United States, 547 U.S. 715 (2006); Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of “Waters of the United States,” 68 Fed. Reg. 1991 (Jan. 15, 2003). 253. Rapanos, 547 U.S. at 726 (plurality opinion) (quoting Advance Notice of Proposed Rule- making on the Clean Water Act Regulatory Definition of “Waters of the United States,” 68 Fed. Reg. at 1991). 254. Id. (citations omitted). 255. Id. 256. Id. at 715. 100 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 four Michigan wetlands, which were near ditches or human-made drains that emptied into traditional navigable waters, were WOTUS under the CWA.257 The first consolidated case before the court was Rapanos v. United States, regarding three parcels of land in Michigan.258 The Sixth Cir- cuit affirmed the District Court, holding there was “federal jurisdiction over the wetlands on all three sites because ‘there were hydrological connections between all three sites and corresponding adjacent trib- utaries of navigable waters.’”259 The U.S. Supreme Court granted cer- tiorari to determine whether the wetlands in these cases were WOTUS and, if so, whether the CWA was constitutional.260 The second consolidated case, Carabell v. U.S. Army Corps of Engi- neers, involved 15.9 acres of forested wetlands.261 The lot contained a human-made berm separating the property from a ditch.262 The berm almost always, under normal conditions, prevented surface wa- ter flow from the wetlands into the ditch.263 In 1993, the Carabells sought a permit from the Michigan Department of Environmental Quality to fill wetlands and build condominiums.264 The Department denied the permit, but a State Administrative Law judge directed the agency to approve an alternative plan proposed by the Carabells.265 EPA objected to the alternate permit and the USACE denied it because the lot provided “water storage functions that, if destroyed, could re- sult in an increased risk of erosion and degradation of water quality 257. Id. at 729. 258. Rapanos, 547 U.S. at 762 (Kennedy, J., concurring) (quoting 376 F.3d 629, 643 (2004)). The Rapanos petitioners and their affiliated businesses placed fill material into wetlands on three sites that ultimately connected to traditionally navigable waters. Id. The first parcel, the Salzburg site, contained twenty-eight acres of wetlands. Id. The District Court in the consoli- dated case found that water from the site drained into the Hoppler Drain, which then flowed into the Hoppler Creek, then into the Kawkawlin River, which is navigable. Id. The second par- cel, the Hines Road site, contained sixty-four acres of wetlands, which the District Court found had a surface water connection to the Rose Drain that flowed into the Tittawabassee River. Id. The third site, the Pine River site, contained forty-nine acres of wetlands, which the District Court found had a surface water connection to the Pine River that proceeded to Lake Huron. Id. at 763. 259. Rapanos, 547 U.S. at 729–30 (plurality opinion). 260. Id. at 730. 261. Id. at 764 (Kennedy, J., concurring). 262. Id. 263. An administrative hearing testimony by a consultant for Carabells “indicated ‘you would start seeing some overflow’ in a ‘ten-year storm.’” Id. (citation omitted). The ditch connected with the Sutherland-Oemig Drain, which flows continuously throughout the year into Auvase Creek. Auvase Creek connects to Lake St. Clair, about one mile from the lot itself. The ditch also connected to other ditches that also empty into Auvase Creek and thus to Lake St. Clair. Id. 264. Rapanos, 547 U.S. at 765 (Kennedy, J., concurring). 265. Id. 2025] Navigating Rough Waters After Sackett v. EPA 101 in the Sutherland-Oemig Drain, Auvase Creek, and Lake St. Clair.”266 The Carabells sought judicial review to challenge the USACE’s juris- diction and the merits of the permit denial.267 The USACE prevailed at the District Court and the Court of Appeals for the Sixth Circuit.268 The Supreme Court granted certiorari to consider the Carabells’ jurisdic- tional question.269 Justice Antonin Scalia delivered the plurality opinion with only four votes.270 Justice Anthony Kennedy concurred only in the judgement but gave a competing rationale.271 Because the four dissenting jus- tices shared Justice Kennedy’s essential reasoning, Justice Kennedy’s opinion shaped the interpretation of WOTUS for years to come.272 Justice Scalia’s test in Rapanos included only those waters that are “relatively permanent, standing or continuously flowing bodies of wa- ter” and “does not include channels through which water flows inter- mittently or ephemerally, or channels that periodically provide drain- age for rainfall.”273 Additionally, Justice Scalia stated that a “wetland may not be considered ‘adjacent to’ remote ‘waters of the United States’ based on a mere hydrological connection.”274 Therefore, Jus- tice Scalia’s view of WOTUS requires a direct connection to waters navigable in fact. Justice Scalia’s plurality opinion remanded the cases to the lower courts to determine “whether the ditches or drains near each wetland are ‘waters’ in the ordinary sense of containing a rela- tively permanent flow; and (if they are) whether the wetlands in ques- tion are ‘adjacent’ to these ‘waters’ in the sense of possessing a con- tinuous surface connection . . . .”275 In contrast, Justice Kennedy’s test relied on a “significant nexus” between a wetland and waters that are navigable in fact or that “could reasonably be so made . . . .”276 Under the broader significant nexus test, a wetland has the necessary nexus to be a WOTUS if it “alone, or in combination with similarly situated lands . . . significantly affect[s] the chemical, physical, and biological 266. Id. 267. Id. 268. Id. 269. Id. 270. Rapanos, 547 U.S. at 718 (plurality opinion). 271. Id. at 719 (Kennedy, J., concurring). 272. Id. at 717 (syllabus). The dissent wanted to defer to EPA’s existing regulations, which already used significant nexus. The regulations created a rebuttable presumption that a signifi- cant nexus exists. Id. at 811 (Breyer, J., dissenting). 273. Id. at 739 (plurality opinion). 274. Id. at 716 (syllabus) (citation omitted). 275. Rapanos, 547 U.S. at 757 (plurality opinion). 276. Id. at 717 (syllabus). 102 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 integrity of other covered waters understood as navigable in the tra- ditional sense.”277 After Rapanos, Justice Kennedy’s significant nexus test carried the day as EPA and USACE incorporated it into their updated rule defining WOTUS and wetlands under the CWA.278 The 2015 Clean Water Rule claims to incorporate the statute; science; Supreme Court decisions in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States; and the agencies’ experience and technical expertise.279 More than fifteen years after Rapanos, the U.S. Supreme Court revis- ited the significant nexus test in Sackett v. EPA.280 C. Sackett v. EPA In the 2023 Supreme Court decision of Sackett v. EPA, the Sacketts challenged federal jurisdiction over wetlands on their property near Priest Lake in Idaho.281 The Sacketts purchased the property in 2004 and, without obtaining a Section 404 permit, began backfilling the land in preparation to build a home.282 EPA issued a compliance order stating this violated the CWA be- cause the property included protected wetlands with a significant nexus to Priest Lake, a traditional navigable water.283 EPA directed the Sacketts to immediately start activities to restore the site under a Restoration Work Plan provided by the agency.284 If they did not, the order stated the Sacketts would be charged $40,000 per day for non- compliance.285 EPA interpreted WOTUS to include all waters “that ‘could affect interstate or foreign commerce,’” and “‘[w]etlands adja- cent’ to those waters.”286 At the time, the term “adjacent” was defined as “neighboring” in addition to “bordering” or “contiguous.”287 Fol- lowing Rapanos, EPA and the USACE created a guidance document which stated agency jurisdiction also applied to adjacent wetlands 277. Rapanos, 547 U.S. at 717 (syllabus). 278. Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37054, 37056 (June 29, 2015). 279. Id. at 37054. 280. Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023). 281. Id. at 661–62. 282. Id. at 662. 283. Id. Although the EPA and the USACE jointly enforce the CWA, the EPA is tasked with policing violations after the fact. See id. at 661. 284. Id. at 662. 285. Sackett, 598 U.S. at 662. 286. Id. (citation omitted). 287. Id. 2025] Navigating Rough Waters After Sackett v. EPA 103 that did not have a continuous surface connection to traditionally nav- igable waters.288 Therefore, finding a continuous surface connection to traditional navigable waters was not needed to determine if a wet- land was adjacent.289 EPA stated the Sacketts’ lot contained wetlands that are adjacent to, in a neighboring sense, an unnamed tributary on the opposite side of a thirty-foot road.290 The tributary then feeds into a non-navigable creek, which feeds into Priest Lake.291 EPA stated the Sacketts’ property was “similarly situated” to the Kalispell Bay Fen, a large wetland complex nearby.292 The properties “taken together, ‘significantly affect’ the ecology” of the lake, and thus, the agency con- cluded that the Sacketts had illegally deposited fill into a WOTUS.293 The Sacketts argued EPA lacked jurisdiction, asserting that none of the wetlands on their property were considered WOTUS because these were not adjacent wetlands that met the significant nexus test.294 The Ninth Circuit affirmed the District Court’s holding, based on the Rapanos significant nexus test, that the CWA covered these ad- jacent wetlands.295 The U.S. Supreme Court granted certiorari and re- evaluated the proper test for deciding if wetlands are WOTUS under the CWA.296 Although the Court unanimously concluded that the wetlands on the Sackett’s property do not fall under the definition of WOTUS, it split five to four in its reasoning.297 Justice Alito delivered the majority opinion of the Court.298 In order to determine if wetlands are WOTUS, Justice Alito first looked to the text of the CWA, and citing to Rapanos, concluded that the Act’s “use of ‘waters’ encompasses ‘only those rel- atively permanent, standing or continuously flowing bodies of water’” that form geological features “described in ordinary parlance as 288. Id. (citing to U.S. Env’t Prot. Agency & U.S. Army Corps Eng’rs, Clean Water Act Jurisdic- tion Following the U. S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States at 5 (2008), https://www.epa.gov/sites/default/files/2016-02/documents/cwa_ jurisdiction_following_rapanos120208.pdf) [https://perma.cc/29MQ-9B9H]. 289. Id. at 5. 290. Sackett, 598 U.S. at 662. 291. Id. at 663. 292. Id. 293. Id. 294. Id. 295. Id. 296. Sackett, 598 U.S. at 663. 297. Id. at 651. 298. Justice Clarence Thomas filed a concurring opinion, joined by Justice Neil Gorsuch. Jus- tice Elena Kagan filed an opinion concurring in the judgement, joined by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson. Justice Brett Kavanaugh also filed an opinion concurring in the judgement, joined by Justice Sotomayor, Justice Kagan, and Justice Jackson. Id. 104 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 ‘streams, oceans, rivers and lakes.’”299 Citing SWANCC, Justice Alito reasoned that the Court has previously held that the usage of the term “navigable” in the CWA “at least shows that Congress was focused on ‘its traditional jurisdiction over waters that were or had been naviga- ble in fact or which could reasonably be so made,’” so, at a minimum “navigable” refers to bodies of traditional waters like oceans, lakes and rivers.300 The opinion also noted how Congress used “waters” elsewhere in the CWA and other laws, observing that the CWA used the term to refer to bodies of open water, and correlates the term to rivers, lakes and oceans.301 Justice Alito then considered which wetlands are included as WOTUS. The Court first looked to the 1977 amended CWA, which added a section that authorized states to apply to EPA to administer their own programs to issue permits for the discharge of dredged or fill material into specific waters.302 State permitting programs can regulate discharges into any “waters of the United States . . . ‘including wetlands adjacent thereto.’”303 The Court looked to the term “adja- cent,” finding dictionaries define the term as “contiguous” or “near.”304 The Court stated, however, that interpreting statutory language does not simply rely on the dictionary definitions and, in this case, only one meaning of the word is compatible with the rest of the law—that wet- lands “separate from traditional navigable waters cannot be consid- ered part of those waters, even if they are located nearby.”305 Justice Alito was concerned that EPA’s argument—using the signif- icant nexus test that wetlands are adjacent if they are neighboring to covered waters, even if they are separated by a road—is too broad and raises vagueness concerns for criminal penalties.306 He rejected EPA’s approach saying the “boundary between a ‘significant’ and an insignificant nexus is far from clear,” and the test adds another con- fusing term in “similarly situated.”307 This leaves the test too vague as it provides “little notice” to the landowners of their obligations under the CWA and the Act provides severe criminal penalties even for 299. Id. at 671 (quoting Rapanos v. United States, 547 U.S. 715, 739 (2006)). 300. Id. at 672 (quoting Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172 (2001)). 301. Id. at 672–73. 302. Sackett, 598 U.S. at 675. 303. Id. (quoting 33 U.S.C. § 1344(g)(1)). 304. Id. at 676. 305. Id. 306. Id. at 679–80. 307. Id. at 681. 2025] Navigating Rough Waters After Sackett v. EPA 105 negligent violations.308 The Court reasoned an overly broad interpre- tation of the CWA would impinge on states’ traditional authority to regulate land and water use.309 The Court concluded that because the significant nexus test is not mentioned in the CWA, EPA had no statu- tory basis to impose it.310 Although the Court discussed its impact on states, notably absent was an evaluation of how a change in definition would impact tribes and the federal-tribal relationship.311 Citing Justice Scalia’s test in Rapanos, Justice Alito’s opinion in Sack- ett held that the CWA only extends to those wetlands that are “as a practical matter indistinguishable from waters of the United States.”312 This newly-announced test rejects the policy of the USACE and EPA since the 1970s. Sackett now requires that the adjacent body of water be a traditional WOTUS and that the wetland have a “contin- uous surface connection” with that adjacent body of water, such that it is “difficult to determine where the ‘water’ ends and where the ‘wet- land’ begins.”313 The Court reversed the lower court’s ruling, and held the wetlands on the Sacketts’ lot are distinguishable from other cov- ered waters, so they did not meet the new test for wetlands to be con- sidered WOTUS.314 Pursuant to the new definition announced in Sackett, EPA and the USACE issued a conforming rule in 2023 to redefine WOTUS con- sistent with the Court’s new approach to the limits of federal jurisdic- tion over WOTUS.315 This rule: 1) redefined “adjacent” waters to mean “having a continuous surface connection,” 2) removed “signifi- cant nexus” wherever it appeared, 3) struck “interstate wetlands” from the defined list of WOTUS categories, and 4) struck wetlands and streams from WOTUS category of “additional waters.”316 When issuing the conforming rule, EPA estimated that 63% of wet- lands and an estimated 1.2 to 4.9 million miles of ephemeral streams nationwide would no longer be covered under federal jurisdiction.317 308. Sackett, 598 U.S. at 681. 309. Id. at 679–80. 310. Id. at 680. 311. Id. at 683. 312. Id. at 678. 313. Id. at 678–79. 314. Sackett, 598 U.S. at 684. 315. Revised Definition of “Waters of the United States”; Conforming, 88 Fed. Reg. 61964 (Sept. 8, 2023) (to be codified at 33 C.F.R pt. 328). 316. Id. at 61969. 317. U.S. Env’t Prot. Agency, Policy Webinar: Updates on the Definition of “Waters of the United States,” 24:01-24:18, YOUTUBE (Sept. 12, 2023, 03:00 PM EST) 106 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 For wetlands that are no longer jurisdictional for the Section 404 pro- gram, they will not be regulated unless the state or tribe in which the wetland is located has created regulatory authority that goes beyond federal jurisdiction. Therefore, regulatory protection for non-federal wetlands and ephemeral streams relies on state and tribal programs that have a broader scope than federally-defined WOTUS. In the next section, we will examine the post-Sackett responses at various levels of government: federal, federally-recognized tribes, and states. We sort the state responses into those that strengthened or weakened protections of wetlands and show a discordant state reac- tion that will result in uneven protections for the Nation’s waters. IV. FEDERAL, TRIBAL, AND STATE RESPONSES TO SACKETT A. Federal Court Challenges Post-Sackett There have been a few legal challenges since Sackett that raise in- terpretative issues. Two cases in particular warrant discussion here. In June 2024, a federal district court in North Carolina ruled on the legality of EPA’s post-Sackett conforming rule when a landowner sought an injunction. In a pending administrative appeal, the Pacific Legal Foundation is representing a landowner in Iowa who wants to escape federal jurisdiction over an unnamed tributary. In January 2023, EPA filed a complaint in federal court in North Car- olina against Robert White, in which it sought injunctive relief and civil penalties for violations of the CWA.318 White’s dredge and fill ac- tivities impacted a total of about 11.85 acres of wetlands across three properties.319 EPA asserted the forested and marsh wetlands, into which White discharged dredge and fill materials, are “directly adja- cent to traditionally navigable waters and therefore, are [WOTUS] . . . .”320 The complaint states the USACE and EPA made efforts over the https://www.youtube.com/watch?v=lcCVelsAy2c [https://perma.cc/A3T5-8MLK]; See also Al- lyson Chui, Biden Rule, Heeding Supreme Court, Could Strip Over Half of U.S. Wetlands’ Protections, WASH. POST (Aug. 29, 2023), https://www.washingtonpost.com/climate-environment/2023/ 08/29/epa-new-wetland-rule/ [On File with the Columbia Journal of Environmental Law]. 318. Complaint ¶ 1, U.S. v. White, No. 2:23-cv-00001, (E.D.N.C. Jan. 6, 2023), ECF No. 1. The complaint states that from 2015 until late 2017, White discharged pollutants, including dredge and fill material into WOTUS at three locations (known as “the Site”) in or near Elizabeth City, Pasquotank County, North Carolina, without proper authorization under the CWA. Id. ¶¶ 1, 20. These three locations, called “the Site” in the complaint, consist of properties: 1) off Shadneck road, 2) off Pine Shore Road, and 3) off Wades Point Road. Id. ¶ 20. 319. Id. ¶ 23. 320. Id. ¶ 26. 2025] Navigating Rough Waters After Sackett v. EPA 107 past couple of years to negotiate a remedy for White’s violations but White “refused to restore the aquatic functions” of the open waters and wetlands that were degraded by the construction and filling.321 Then on March 14, 2024, White countered by seeking declaratory and injunctive relief on the basis that EPA’s amended September 8, 2024 conforming rule post-Sackett does not comply with Sackett be- cause the rule’s definition of “adjacent” wetlands unlawfully omits Sackett’s requirement that the wetland be indistinguishable from the traditional WOTUS.322 On June 17, 2024, the district court held that White was unlikely to succeed on the merits, and denied White’s mo- tion for a preliminary injunction to enjoin the USACE and EPA from applying the conforming rule.323 In reaching its holding, the court dis- cussed Sackett’s “two-pronged test for adjacent wetlands” and whether the conforming rule is consistent with it.324 The court ob- served the rule removed any reference to “significant nexus” and amended the definition of “adjacent” to “having a continuous surface connection.”325 The court rejected White’s argument that the amended definition is invalid because it lacks the “practically indistin- guishable” element the Supreme Court used in the Sackett decision. The court reasoned that for a water to be “practically indistinguisha- ble” from a traditional navigable water, it needs a continuous surface connection. Thus, the focus on continuous surface connection is suf- ficient to conform with the meaning of Sackett.326 In a second post-Sackett case, the Pacific Legal Foundation is repre- senting a landowner in Iowa in an administrative appeal that chal- lenges USACE’s January 2, 2024 JD on property owned by Dan Ward and a company, Genesis 27:3, LLC.327 The landowners planned to con- struct an approximately nine acre recreational pond across approxi- mately 2,800 linear feet of an unnamed tributary’s reach on the land- owners' property.328 The JD stated the USACE had jurisdiction over 321. U.S. v. White, No. 2:23-cv-00001, (E.D.N.C. Jan. 6, 2023) ¶ 28. 322. Complaint for Declaratory and Injunctive Relief, White v. U.S. Env’t Prot. Agency, No. 2:24-CV-00013-BO, 2024 WL 3049581 (E.D.N.C. June 18, 2024), ECF No. 1. 323. White, 2024 WL 3049581, at *1. 324. Id. at *9. 325. Id. (citing Revised Definition of “Waters of the United States”; Conforming, 88 Fed. Reg. 61964, 61966 (Sept. 8, 2023) (to be codified at 33 C.F.R pt. 328). 326. White, 2024 WL 3049581, at *10. 327. Request for Appeal of U.S. Army Corps of Engineers (Corps) Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (Feb. 26, 2024) (File Number 2022-1472), at 1, https://pacificlegal.org/wp-content/uploads/2024/02/2024- 02-26-Ward-v-army-corps-request-for-appeal.pdf [https://perma.cc/GR8J-NX3P]. 328. Id. at 8. 108 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 an unnamed tributary on Ward/Genesis’ property.329 The request for an administrative appeal of the JD argued: 1) the unnamed tributary does not meet the standard set forth in Sackett to be considered WOTUS, 2) the district engineer acted in an arbitrary and capricious manner by failing to identify a “rational connection between the facts found and the choice made” in violation of the Administrative Proce- dure Act, and 3) the district engineer violated the CWA by asserting authority over a tributary that was never or will never be used as a highway of interstate or foreign commerce.330 The complaint argued the tributary does not meet the standard un- der Sackett for three reasons.331 First, under Sackett, the relevant in- quiry is “whether a reasonable person would—taking into account visual observation of the relatively permanent presence of standing or continuously flowing water—describe the feature in question as a ‘stream[], ocean[], river[], [or] lake[].’”332 In this case, the complaint argues that no reasonable person would describe the unnamed tribu- tary using the terminology above. Second, the complaint argues the “ordinary presence of water is not sufficient for a feature to qualify as a water,” but the ordinary presence of water is “at the very least nec- essary for regulation.”333 Therefore, a regulable water must at least be marked by the ordinary presence of water—or, in other words, it must be more likely than not that, on any given day of the year, there will be water present. The complaint argues that the unnamed tribu- tary does not meet this minimal qualification as photographs demon- strate that it is typically dry.334 Third, the complaint argues that even if Sackett did not preclude seasonal rivers, the unnamed tributary is not categorized as one. The complaint argues the district engineer erred when concluding the unnamed tributary flows in a “seasonal and predictable manner during the spring when groundwater may be present” based on one day’s observations.335 This case is pending at the time of this publication. These are only some examples of cases after Sackett, occurrences of which may only rise as Sackett has increased the confusion 329. Id. at 1. 330. Id. at 1–2. 331. Id. at 9. 332. Id. (quoting Sackett v. Env’t Prot. Agency, 598 U.S. 651, 671 (2023)). 333. Request for Appeal of U.S. Army Corps of Engineers (Corps) Pre-2015 Regulatory Regime Approved Jurisdictional Determination in Light of Sackett v. EPA, 143 S. Ct. 1322 (Feb. 26, 2024) (File Number 2022-1472), at 9. 334. Id. at 10. 335. Id. 2025] Navigating Rough Waters After Sackett v. EPA 109 surrounding the definition of WOTUS and widened the door for im- pacts to wetlands and ephemeral and intermittent streams without federal jurisdiction. B. Federal Government Actions Post-Sackett The Federal government may take actions to mitigate the impacts of Sackett on federal regulatory jurisdiction over wetlands and ephemeral and intermittent streams. However, some scholars argue that federal executive and legislative actions face substantial chal- lenges because after Sackett, “federal agencies lack the statutory au- thority to take major steps, and Congress is unlikely to pass new leg- islation authorizing regulatory limits.”336 Consistent with this observation, in April 2024, the Biden-Harris Administration an- nounced a new “America the Beautiful Freshwater Challenge,” that seeks to inspire sub-national governments to take action, rather than federally addressing the regulatory gap. The challenge sets a national goal to “protect, restore, and reconnect 8 million acres of wetlands and 100,000 miles of our nation’s river and streams” by 2030.337 For wetlands, the challenge emphasizes forested, vegetated, peat soil, brackish, and tidal wetlands.338 The challenge claims, “Congressional Republicans are continuing a decades-long effort to undermine Clean Water Act safeguards.”339 In light of this assessment that the federal government cannot legislate a return to fuller federal jurisdiction over wetlands, the “action” element of the challenge encourages states, tribes, and local communities to advance wetland-protection policies, and includes a one billion dollar investment in tribal water protec- tions.340 336. Michael Vandenbergh et. al., Filling the Sacket Gap: The Private Governance Option, 109 MINN. L. REV. (forthcoming), at 4. 337. The America the Beautiful Freshwater Challenge, THE WHITE HOUSE, https://www.whitehouse.gov/ceq/the-america-the-beautiful-freshwater-challenge/ [https:// perma.cc/W99S-QKFD] (last visited July 25, 2024) [hereinafter Freshwater Challenge]; see also FACT SHEET: At White House Water Summit, Biden-Harris Administration Announces Bold Na- tional Goal to Protect and Restore Freshwater Resources, Delivers Over $1 Billion for Tribal Clean Water Projects, THE WHITE HOUSE (Apr. 23, 2024), https://www.whitehouse.gov/briefing- room/statements-releases/2024/04/23/fact-sheet-at-white-house-water-summit-biden-har- ris-administration-announces-bold-national-goal-to-protect-and-restore-freshwater-resources -delivers-over-1-billion-for-tribal-clean-water-projects/ [https://perma.cc/X8ZU-XAQW] [here inafter Fact Sheet]. 338. Freshwater Challenge, supra note 337. 339. Fact Sheet, supra note 337. 340. Freshwater Challenge, supra note 337; Fact Sheet, supra note 337. 110 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 C. Tribal and State Regulatory Frameworks and Actions Post- Sackett With federal jurisdiction rolled back, it falls to tribes and states to decide what action to take. While the Biden-Harris Freshwater Chal- lenge emphasizes state and tribal action, it is important to note the resource constraints of these governments and the limitations in ex- isting state laws that tie state jurisdiction to federal jurisdiction. Prior scholars have documented that about half the states have laws that require wetland protections to be no more stringent than federal pro- tections.341 In this section, we will discuss actions some tribes and states have taken post-Sackett to show the patchwork of responses that has been emerging. 1. Tribal Responses to Sackett a. Tribal Nations—Trust Relationship with Federal Government and Sovereignty Tribal nations are sovereigns that exist within the borders of the United States. This is recognized through hundreds of treaties with tribal nations.342 U.S. treaties with tribal nations are on the same level as treaties with other foreign governments, and take precedence over any conflicting state laws.343 Uniquely, tribal citizens are citizens of their tribal nation, the U.S., and the state where they reside.344 As of January 2024, there are 574 federally-recognized tribes in the U.S.345 341. Vandenbergh et. al., supra note 336, at 4. 342. NAT’L CONG. OF AM. INDIANS, TRIBAL NATIONS AND THE UNITED STATES: AN INTRODUCTION 18 (2020). 343. Id. 344. Id. 345. MAINON A. SCHWARTZ, CONG. RSCH. SERV., R47414, THE 574 FEDERALLY RECOGNIZED TRIBES IN THE UNITED STATES 1 (2024). According to the U.S. Department of the Interior Bureau of Indian Affairs, a federally-recognized tribe is “an American Indian or Alaska Native tribal entity that is recognized as having a government-to-government relationship with the United States, with the responsibilities, powers, limitations, and obligations attached to that designation, and is eligible for funding and services from the Bureau of Indian Affairs.” Federally-recognized tribes are also “recognized as possessing certain inherent rights of self-government (i.e., tribal sovereignty) and are entitled to receive certain federal benefits, services, and protections because of their special relationship” with the U.S. Why Tribes Exist Today in the U.S., U.S. DEP’T INTERIOR BUREAU INDIAN AFFS., https://web.archive.org/web/20240308192945/https://www.bia.gov/frequentl y-asked-questions [https://perma.cc/7WSE-JRE2] (last visited Mar. 6, 2024). Brothertown Na- tion is the only Tribe in Wisconsin that is not federally recognized. However, the Tribe continues its long-standing effort to regain federal recognition. Restoration, BROTHERTOWN INDIAN NATION, https://brothertownindians.org/restoration/ [https://perma.cc/5BG2-3LP5] (last visited Mar. 6, 2024). 2025] Navigating Rough Waters After Sackett v. EPA 111 Federal recognition, also called federal acknowledgement, is a “term of art formalizing a government-to-government relationship” be- tween the U.S. and a specific tribal nation.346 Federal recognition gen- erally means that the tribe is afforded certain rights and protections “including limited sovereign immunity, powers of self-government, the right to control the lands held in trust for them by the federal gov- ernment, and the right to apply for some federal services.”347 Among other things, treaties established the idea of the federal “trust responsibility” between tribal nations and the federal govern- ment.348 According to the 2020 edition of Tribal Nations and the United States: An Introduction, by the National Congress of American Indians (2020 Guide to Tribal Nations), this trust responsibility obli- gates the federal government to “protect tribal self-governance, tribal land, assets, resources, and treaty rights,” and to accomplish the di- rectives of federal statutes and court cases on tribal land.349 However, this trust responsibility is undermined by the fact that it was only vol- untary on behalf of the U.S., not the tribes.350 Beyond these general principles, each tribe has its relationship with the U.S., as shaped by its specific treaties or other legal documents.351 Given the federal government has a trust responsibility to tribes to protect their land and resources, including water,352 the U.S. has a duty to “protect Tribal lands and resources that it does not shoulder with other groups.”353 Sulliván et al. discusses how, although initially meant to play a protective role, this trust responsibility served as the basis for the expansion of federal authority on tribal lands, which to- day is considered “plenary,” and the idea that tribal sovereignty is subject to the authority of the U.S.354 This combination has led tribes to “heavily rely on” federal environmental legislation instead of their inherent sovereignty for environmental protections within tribal lands.355 Sulliván et al. discusses how the scientific grounding of the current definition of WOTUS fails to adequately protect tribal water 346. SCHWARTZ, supra note 345, at 1. 347. Id. at n.4. 348. NAT’L CONG. OF AM. INDIANS, supra note 342, at 18. 349. Id. at 23. 350. Robert T. Anderson, Indigenous Rights to Water & Environmental Protection, 53 HARV. C.R.-C.L. L. REV. 337, 343 (2018). 351. EXECUTIVE BOARD OF AUTHORS AND EDITORS, COHEN’S HANDBOOK OF FEDERAL INDIAN LAW Ch.1 (Mathew Bender & Company, Inc., LexisNexis, 2024). 352. Sulliván et al., supra note 139, at 1. 353. Id. at 1. 354. Id. 355. Id. 112 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 resources because connectivity on tribal lands must be viewed and quantified based on the values of Indigenous peoples beyond what is measured by the current science used.356 To fill this gap, Sulliván et al. propose a parallel set of standards for WOTUS determinations on tribal lands to “appropriately reflect traditional and contemporary ways that Tribal peoples use water on their homelands.”357 b. Tribal Responses to Sackett As Dean Elizabeth Kronk Warner highlighted, tribal sovereignty can be a “reference to both a physical place, as well as to the people who occupy that space. For many Indians, their tribes’ sovereignty con- tributes to their very personhood.”358 According to the 2020 Guide to Tribal Nations, the heart of tribal sovereignty is the “ability to govern and to protect and enhance the health, safety, and welfare of tribal cit- izens within tribal territory.”359 Tribal governments have the power to determine their own structures of governance and enforce their laws through police departments and tribal courts.360 They are also responsible for a variety of governmental activities on tribal lands in- cluding environmental protections and managing natural re- sources.361 As Dean Kronk Warner explained, many tribal communi- ties and individuals have “a close connection to the land” and so environmental laws may “acquire even greater meaning in Indian country.”362 About 56 million acres of land are held in trust by the U.S. for Indian tribes and individuals,363 approximately 2% of the U.S. land 356. Id. at 3. 357. Id. at 6. 358. Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. COLO. L. REV. 789, 836 (2015). 359. NAT’L CONG. OF AM. INDIANS, supra note 342, at 23. 360. Id. at 23. 361. Id. 362. Kronk Warner, supra note 358, at 793. 363. NAT’L CONG. OF AM. INDIANS, supra note 342, at 26; Fee to Trust Land Acquisitions, U.S. DEP’T INTERIOR BUREAU INDIAN AFFS., https://www.bia.gov/bia/ots/fee-to-trust [https://perma.cc/52TN-4RHB] (last visited Dec. 15, 2024). Land held in trust includes both reservation lands and other lands held by the U.S. Under 25 U.S.C. § 2201(4), “(i) ‘trust or re- stricted lands’ means lands, title to which is held by the United States in trust for an Indian tribe or individual, or which is held by an Indian tribe or individual subject to a restriction by the United States against alienation; and (ii) ‘trust or restricted interest in land’ or ‘trust or re- stricted interest in a parcel of land’ means an interest in land, the title to which interest is held in trust by the United States for an Indian tribe or individual, or which is held by an Indian tribe or individual subject to a restriction by the United States against alienation.” Additionally, the 1991 U.S. Supreme Court decision, Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991), affirmed that trust land qualifies as a reservation where “it has been 2025] Navigating Rough Waters After Sackett v. EPA 113 base.364 As highlighted by Dean Kronk Warner, there are two main avenues through which tribes enact environmental regulations: through their own tribal sovereignty as nations and when EPA has delegated authority through Section 518 of the CWA to treat tribes in a similar manner as states (“TAS” provisions).365 After Sackett, many tribes signed on to the America the Beautiful Freshwater Challenge, including: the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes of the Warm Springs Reservation of Oregon, Gila River Indian Community, Jame- stown S’Klallam Tribe, Navajo Nation, Nez Perce Tribe, Confederated Tribes and Bands of the Yakama Nation, Yurok Tribe, and Nottoway Indian Tribe of Virginia.366 Tribes have also been involved in WOTUS rulemaking and filed an Amicus Brief in Sackett consistently arguing against reducing federal jurisdiction. Prior to Sackett, numerous tribes, entities representing tribes, and tribal organizations submitted comments to EPA express- ing the importance of the wetlands to tribes and urging the agency to not reduce federal jurisdiction through proposed rules to re-define WOTUS.367 When the Supreme Court was considering the issues in validly set apart for the use of the Indians as such, under the superintendence of the Govern- ment." Id. at 506. 364. NAT’L CONG. OF AM. INDIANS, supra note 342, at 26. 365. Kronk Warner, supra note 358, at 792; see supra text accompanying note 187 (discussing “Tribes as States” (TAS) permitting under §518(e) of the CWA). 366. Freshwater Challenge, supra note 337. 367. Comments for the Tribal Consultation period on the proposed changes to WOTUS can be found on EPA’s website. Tribal Consultation – Pre-Proposal of a Revised Definition of Waters of the United States, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/wotus/tribal-consultation-pre- proposal-revised-definition-waters-us [https://perma.cc/NE7T-BMQG] (last updated Sept. 8, 2023). See, e.g., Little Traverse Bay Bands of Odawa Indians, Notification of Consultation and Coordination on Revising the Definition of “Waters of the United States” (Sept. 28, 2021), https://www.epa.gov/system/files/documents/2021-11/ltbb_10-4-2021_508.pdf [https://perma.cc/YMC8-ZCQ5]; Navajo Nation, Navajo Nation’s Comments in Response to Let- ter to Tribal Leaders, “Notification of Consultation and Coordination on Revising the Definition of ‘Waters of the United States’” (July 29, 2021) and Notice of Public Meetings Regarding “Waters of the United States”; Establishment of a Public Docket; Request for Recommendations, 86 Fed. Reg. 147 41911 (August 4, 2021) (Oct. 1, 2021), https://www.epa.gov/system/files/docu- ments/2021-11/navajo1.pdf [https://perma.cc/4CR9-LVSY]; Pueblo of Jemez, Comments of Pueblo of Jemez in Response to Request for Recommendations on Defining “Waters of the United States” (Oct. 4, 2021), https://www.epa.gov/system/files/documents/2021-11/pueblo1_0.pdf [https://perma.cc/7D3R-7YQH]; Bad River Band of Lake Superior Tribe of Chippewa Indians, Tribal Comments as Consultation on Waters of the United States (WOTUS) Rulemaking (Oct. 4, 2021), https://www.epa.gov/system/files/documents/2021-11/letter1.pdf [https://perma.cc /VW5R-RD5M]; Great Lakes Indian Fish and Wildlife Commission, Notification of Consultation and Coordination on Revising the Definition of “Waters of the United States” (Oct. 4, 2021), 114 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 Sackett, many tribes filed an Amicus Brief of Tribes, discussed above, arguing the importance of wetlands and ephemeral and intermittent streams.368 However, the Supreme Court was silent on how its deci- sion would impact tribes when it wrote the opinion in Sackett. 2. State Responses to Sackett With the federal government unable to mount a regulatory re- sponse to the loss of federal jurisdiction, the focus turns to the states and what will be a piecemeal approach to waters of regional and na- tional significance. The Environmental Law Institute’s report, Filling the Gaps: Strategies for States/Tribes for Protection of Non-WOTUS Waters, shows the different programs prior to the Sackett decision.369 In May 2023, twenty-four states relied primarily on federal jurisdic- tion to “protect freshwater wetlands and tributaries from dredge and fill, rather than on independent state permit programs;”370 nineteen states had permitting programs applicable to their waters, including wetlands, that may go beyond federal jurisdiction;371 and seven states had enacted “specialized laws and regulations, or case-by-case review practices, that are expressly intended to fill identified gaps in CWA coverage.”372 https://www.epa.gov/system/files/documents/2021-11/glifwc_10-4-2021_508.pdf [https:// perma.cc/6NF6-RTQ8]. Additionally, letters were submitted on behalf of some tribes in the pub- lic comment period. Revising the Definition of "Waters of the United States, U.S. ENV'T PROT. AGENCY, https://www.epa.gov/wotus/revising-definition-waters-united-states [https://perma. cc/96F7-H28F] (last updated Sept. 3, 2024). See for example Great Lakes Indian Fish and Wild- life Commission, GLIFWC Comments on Proposed Rule, Docket ID No. EPA-HQ-OW-2021-0602 (Feb. 7, 2022); Earthjustice, Proposed Revised Definition of “Waters of the United States” Rule, Docket ID No. EPA-HQ-OW-2021-0602 (Oct. 4, 2021); Comments of Tohono O’odham Nation, Quinault Indian Nation, Bad River Band of Lake Superior Chippewa, Suquamish Tribe, Menomi- nee Indian Tribe of Wisconsin, Fond du Lac Band of Lake Superior Chippewa, Swinomish Indian Tribal Community, Pascua Yaqui Tribe, and Iowa Tribe of Oklahoma (Feb, 7, 2022) [On File with the Columbia Journal of Environmental Law]. 368. Amicus Brief of Tribes, supra note 142. 369. KIHSLINGER ET AL., supra note 171, at 4. 370. States that relied on federal authority as of May 2023 for coverage of these waters are: Alabama, Alaska, Arkansas, Colorado, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Okla- homa, South Carolina, South Dakota, Texas, and Utah. Id. at 4. 371. It is important to note that coverage of these programs varies. The states identified in the ELI Report are: California, Connecticut, Florida, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Ten- nessee, Vermont, Virginia, Washington, and Wisconsin. Id. 372. These states are: Ohio, Indiana, Wyoming, North Carolina, Arizona, Illinois, and West Vir- ginia, plus the District of Columbia. Id. at 4–5. 2025] Navigating Rough Waters After Sackett v. EPA 115 Similar to how the federal government defines WOTUS, each state has their own definitions of “waters of the state.”373 State definitions can include additional waters including groundwater, wetlands, and springs.374 These definitions identify “waters of interest to the states” for both regulatory (such as water quality) and non-regulatory (such as resource planning, conservation, or recreation) reasons.375 Post-Sackett, states have responded in a variety of ways that we group here into three strategies: strengthening regulatory protec- tions beyond federal jurisdiction, weakening regulatory programs to mirror federal jurisdiction, and emphasizing non-regulatory wetland and stream protections, such as conservation easements or pur- chases. a. Strengthened/Increased Protections over Wetlands Some states have enacted or have proposed legislation strengthen- ing regulatory wetland protections to fill the gaps left by the reduction in federal jurisdiction. Here, we highlight efforts in Colorado, Dela- ware, and Illinois. Pre-Sackett, Colorado had been a state that relied on federal juris- diction for regulatory authority over wetlands and ephemeral streams. In response to Sackett, Colorado signed on as a member of the Biden-Harris America the Beautiful Freshwater Challenge.376 Then, Colorado passed HB24-1379 and Governor Jared Polis signed the Bill on May 29, 2024.377 The new law’s legislative declaration states that, as of March 2024, Colorado had no state permitting pro- gram to authorize the discharge of dredged or fill material into state waters and, instead, relied on USACE under Section 404 of the CWA.378 The legislative declaration directly states that Sackett, and the result- ing narrowing of federal jurisdiction over wetlands, has created a need for a state permitting program due to the risk of harm to Colo- rado’s waters.379 The declaration acknowledges that water is Colo- rado’s “most critical natural resource” and protecting water quality is an utmost priority.380 The law specifically notes wetlands and sea- sonal streams have a crucial role in “maintaining water quality . . . 373. McElfish, supra note 170, at 10681. 374. Id. 375. Id. 376. Freshwater Challenge, supra note 337. 377. H.B. 24-1379, 74th Gen. Assemb., Reg. Sess. (Colo. 2024). 378. COLO. REV. STAT. § 25-8-205.1(1)(a)(II) (2024). 379. Id. 380. Id. § 25-8-205.1(1)(b)(I). 116 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 recharging groundwater, controlling floods, and keeping pollution from entering larger bodies of water.”381 Additionally, the declaration states it is in the “state’s interest to expressly include ‘wetlands’ as a category of ‘state waters,’” when considering the vital role wetlands play in protecting Colorado’s water resources.382 This new law charges the Water Quality Control Commission in the Colorado Department of Public Health and the Environment to prom- ulgate rules to “implement a state dredge and fill discharge program” by December 31, 2025.383 Further, the rules “must focus on avoidance and minimization of adverse impacts and on compensation for una- voidable adverse impacts of dredge and fill activity.”384 The law de- fines wetlands as “areas that are inundated or saturated by surface or groundwater at a frequency and for a duration sufficient to support, under normal circumstances, a prevalence of vegetation typically adapted for life in saturated soil conditions.”385 It further defines iso- lated wetlands as “wetlands wholly surrounded by uplands” with some exceptions.386 This law creates a state permitting program for the discharge of dredge or fill material that the USACE’s Section 404 program, prior to Sackett, can serve as a model to build Colorado’s program on.387 Prior to the Sackett decision, Delaware relied on federal jurisdiction under the CWA for wetlands regulation.388 Delaware’s Senate Bill 290 was proposed on May 8, 2024 and would institute a state nontidal wetlands program that would “cover gaps in federal jurisdiction un- der the CWA and mitigate the uncertainty surrounding the limits to federal jurisdiction.”389 The bill includes a purpose section, stating in part that “the preservation of tidal and nontidal wetlands is crucial to the protection of the natural environment.”390 Additionally, the pur- pose section states that the “loss or despoilation” of wetlands 381. Id. § 25-8-205.1(1)(b)(II). 382. Id. § 25-8-205.1(1)(b)(III). 383. Id. § 25-8-205.1(4)(a)(I). 384. COLO. REV. STAT. § 25-8-205.1(4)(a)(I). 385. Id. § 25-8-205.1(3)(v) (2024). 386. “The term ‘isolated wetlands’ does not include wetlands where any portion of the wet- land is within the one-hundred-year floodplain or within one thousand five hundred feet of the ordinary high watermark of other state waters. In the absence of one-hundred-year floodplain mapping by the federal emergency management agency, the 1,500 feet distance criterion ap- plies.” Id. § 25-8-205.1(3)(p) (2024). 387. Id. § 25-8-205.1(1)(B)(VI) (2024). 388. KIHSLINGER ET AL., supra note 171, at 4. 389. An Act to Amend Title 7 of the Delaware Code Relating to the Protection of Wetlands, S.B. 290, 152nd Gen. Assemb. (Del. 2024). 390. Del. S.B 290 § 6602. 2025] Navigating Rough Waters After Sackett v. EPA 117 “substantially impairs our resiliency as a State to withstand the im- pacts of climate change.”391 Currently, Delaware regulates (1) tidal wetlands and (2) nontidal wetlands larger than 400 acres and not used for agricultural pur- poses.392 Under Delaware’s current laws, tidal wetlands only include areas that are subject to tidal action along certain waterways and that grow or are capable of growing certain plant species.393 A permit is required for any activity in these tidal wetlands barring certain ex- emptions.394 The proposed bill would change the current definition of wetlands: “all tidal and nontidal wetlands in the state . . . shall be defined in reg- ulations adopted by” Delaware’s Department of Natural Resources and Environmental Control and “based upon generally accepted crite- ria and methodologies, including (i) the U.S. Army Corps of Engineers Wetlands Delineation Manual dated January 1987, (ii) any regional supplemental guidance pertaining to local conditions, and (iii) Na- tional Wetlands Inventory Maps.”395 Under the proposed bill, activi- ties in both tidal and nontidal wetlands, removing the 400 acre mini- mum, would require a permit barring certain exemptions.396 Additionally, the applicant would have the burden of proving whether the proposed activity is or is not on a tidal or nontidal wetland.397 The bill is assigned to the Senate Environment, Energy, and Transporta- tion Committee and is pending.398 391. Id. 392. DEL. CODE ANN. tit. 7, § 6603(h) (2024). See also What’s Regulated?, DEL. DEP’T OF NAT. RES. & ENV’T CONTROL, https://dnrec.delaware.gov/water/wetlands/whats-regulated/ [https://per ma.cc/Q2SE-MZJQ] (last visited June 26, 2024). 393. DEL. CODE ANN. tit. 7, § 6603(h) (2024). 394. DEL. CODE ANN. tit. 7, § 6606 (2024). Exemptions include mosquito control activities au- thorized by the Department; construction of directional aids to navigation; duck blinds; foot bridges; the placing of boundary stakes; wildlife nesting structures; grazing of domestic animals; haying; hunting; fishing and trapping. DEL. CODE ANN. tit. 7, § 6606 (2024). 395. Del. S.B. 290 § 6603(i). 396. The current exemptions remain the same, but they are extended to all wetlands. Permit exemptions added for nontidal wetlands are: [n]ormal activities established prior to the adoption of [these] regulations….required for the farming and production of food crops, such as plowing, seeding, cultivating and har- vesting provided that such activity is part of an established and on-going operation for the farming and production of food crops, and an operation ceases to be established when the area on which it was conducted has been converted to another use or has lain fallow or idle for 5 years except as part of a conventional, crop rotation cycle. Del. S.B. 290 § 6606. 397. Del. S.B. 290 § 6604(c). 398. Del. S.B. 290. 118 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 Prior to Sackett, Illinois was one of seven states that provided some regulatory authority over specific activities in wetlands.399 In re- sponse to Sackett, Illinois signed on as a member of the America the Beautiful Freshwater Challenge.400 In Illinois, Senate Bill 3669 was proposed on February 9, 2024, and would create a Wetlands and Small Streams Protection Act.401 This Act aims to “restore protections for wetlands and small streams that were formerly protected from pollution and destruction by the Clean Water Act.”402 The Act’s find- ings and intent section states Illinois has “historically relied on” the CWA’s 404 permit program through the USACE and EPA to “prevent harm to aquatic resources from unauthorized discharges of dredge or fill material.”403 Specifically, the findings and intent section states the Sackett decision has rolled back the scope of WOTUS, removing CWA protections for many waters of the state, including wetlands.404 Further, the findings and intent section highlights streams as well as wetlands. It states Illinois has 9,894 miles of streams that “provide water for surface water intakes, supplying public drinking water sys- tems that rely at least in part on intermittent, ephemeral, or headwa- ter streams.”405 This acknowledges that non-continuous streams are important to water resources and should also be afforded regulatory protections. Currently, Illinois’ state wetland regulation is based in the Inter- agency Wetland Policy Act of 1989,406 protecting wetlands from cer- tain state-funded activities.407 Under the Wetland Policy Act, “wet- lands,” like the definition used by USACE, are defined as: land that has a predominance of hydric soils (soils which are usually wet and where there is little or no free oxygen) and that is inundated or sat- urated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prev- alence of hydrophytic vegetation (plants typically found in wet habitats) typically adapted for life in saturated soil conditions. Areas which are restored or created as the result of mitigation or planned construction 399. KIHSLINGER ET AL., supra note 171, at 5. 400. Freshwater Challenge, supra note 337. 401. Wetlands and Small Streams Protection Act, S.B. 3669, 103rd Gen. Assemb. (Ill. 2024). 402. A parallel bill was proposed in the house on the same date. H.B. 5386, 103rd Gen. As- semb. (Ill. 2024). For the purposes of this article, we will track and refer to Senate Bill 3669. 403. Ill. S.B. 3669 § 5(7). 404. Ill. S.B. 3669 § 5(9). 405. Ill. S.B. 3669 § 4(4). 406. 20 ILL. COMP. STAT. 830 (2024). 407. 20 ILL. COMP. STAT. 830/1-3 (2024). 2025] Navigating Rough Waters After Sackett v. EPA 119 projects and which function as a wetland are included within this defi- nition even when all three wetland parameters are not present.408 The proposed bill would change this definition to “those areas that are inundated or saturated by surface or groundwater at a frequency or duration sufficient to support, and that under normal circum- stances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”409 The proposed bill would create a state wetland permitting program, stating no person may discharge dredge or fill material from a point source into a wetland or small stream protected by this act unless au- thorized.410 It also creates 3 classes of wetlands—Class I, Class II, and Class III—with Class I requiring an individual permit, Class II requir- ing either a general or individual permit, and Class III requiring a gen- eral permit unless the Illinois Department of Natural Resources noti- fies the applicant that the regulated activity will cause a “significant negative impact on State water quality,” and will require an individual permit instead.411 The bill is currently pending and, as of April 2024, was re-referred to Assignments.412 b. Weakened/Decreased Protections over Wetlands On the other end of the spectrum, some states have responded to Sackett by proposing legislation that weakens existing state laws to scale back programs and mirror an emaciated federal jurisdiction. Generally, these rollbacks are pushed by the National Association of Home Builders,413 the National Association of Realtors, and the Farm Bureau.414 Here we highlight efforts in North Carolina and Indiana. Rollbacks in wetlands protections in North Carolina have been backed by the North Carolina Home Builders Association.415 North Carolina’s response post-Sackett has been to reduce regulatory 408. 20 ILL. COMP. STAT. 830/1-6(a) (2024). 409. Ill. S.B. 3669 § 10. 410. Ill. S.B. 3669 § 25(a). 411. Ill. S.B. 3669 § 25(b). 412. Ill. S.B. 3669 § 15(c). 413. See generally Builders Score Big in SCOTUS Decision on WOTUS, NAT’L ASS’N OF HOME BUILDERS (May 26, 2023), https://www.nahb.org/blog/2023/05/scotus-wotus-decision [https://perma.cc/6S58-L23F]; Miranda Willson, Homebuilders Flex as Feds Cede Wetland Over- sight to States, E&E NEWS BY POLITICO (Mar. 28, 2024), https://www.eenews.net/articles/home- builders-flex-as-feds-cede-wetland-oversight-to-states/ [https://perma.cc/SVA5-BRJ7]. 414. Willson, supra note 413. 415. See id.; John Flesher & Michael Phillis, States at the Forefront of Fights Over Wetlands Protections After Justices Slash Federal Rules, ASSOCIATED PRESS (Aug. 30, 2023), https://ap- news.com/article/wetlands-supreme-court-state-rules-development-4917c6df50c0cd15da29 15fc12f9445e [https://perma.cc/H2YC-KUD3]. 120 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 controls while simultaneously increasing non-regulatory protections. On June 27, 2023, Senate Bill 582, otherwise known as the North Car- olina Farm Bill, passed when the legislature overrode Governor Roy Cooper’s veto.416 This law restricts wetlands classified as waters of the state to mirror waters defined as WOTUS, and it further specifies that wetlands do not include prior converted cropland.417 This new North Carolina law rolls back prior protections the state had in place for isolated wetlands.418 Prior to Sackett, Indiana had state regulatory protections beyond the federal minimum for wetlands.419 The state wetlands program, mainly focused on isolated wetlands, classifies wetlands into three categories—Class I, Class II, and Class III420—with Class III afforded the most protections.421 Indiana’s Governor Eric Holcomb signed House Bill 1383 on February 12, 2024.422 This new state law redefines Class III, thus re-categorizing some previously Class III wetlands into Class II, which are not afforded as many protections under the state program.423 Before this new law, Class II wetlands were defined as “[a]n isolated wetland that supports moderate habitat or hydrological functions, in- cluding an isolated wetland that is dominated by native species but is generally without: (A) the presence of; or (B) habitat for; rare, threat- ened, or endangered species.”424 Class III wetlands were defined as an isolated wetland that either (1) “is located in a setting undisturbed or minimally disturbed by human activity or development and that sup- ports more than minimal wildlife or aquatic habitat or hydrologic function;” or (2) is one of the rare and ecologically important types 416. S.B. 582, 2023 Gen. Assemb. (N.C. 2024). 417. N.C. S.B. 582 § 15(c). 418. Legislature Overrides Veto of Bill Cutting Wetland Regulation, COASTAL REV. (June 27, 2023), https://coastalreview.org/2023/06/legislature-overrides-veto-of-bill-cutting-wetland- regulation/ [https://perma.cc/EFM4-8EQE]. 419. KIHSLINGER ET AL., supra note 171, at 6. 420. IND. CODE § 13-11-2-25.8(a) (2024). 421. IND. CODE § 13-18-22-2 (2024). 422. H.B. 1383, 123rd Gen. Assemb., 2d Reg. Sess. (Ind. 2024); see also Whitney Downard, Holdcomb Signs First Bill of 2024, Rolls Back Wetlands Protections, IND. CAP. CHRON. (Feb. 12, 2024), https://indianacapitalchronicle.com/briefs/holcomb-signs-first-bill-of-2024-rolls- back-wetlands-protections/ [https://perma.cc/W9AH-5N4S]. 423. IND. CODE § 13-11-2-25.8(a) (2024); Lauren Baldwin, Indiana Wetlands Bill Becomes Law, ENV’T L. NEWS, INDIANAPOLIS BAR ASS’N (Mar. 4, 2024), https://www.indybar.org/?pg=Environ- mentalLawNews&blAction=showEntry&blogEntry=104278# [https://perma.cc/H73P-7CCN]. 424. An Act to Amend the Indiana Code Concerning Environmental Law, H.B. 1383, 123rd Gen. Assemb., 2d Reg. Sess. (Ind. 2024). 2025] Navigating Rough Waters After Sackett v. EPA 121 listed in code (i.e., acid bog, fen, forested fen, dune and swale, or sand flat).425 Class II wetlands now mean either: (1) “isolated wetland[s] that support[] moderate habitat or hydrological functions, including an isolated wetland that is dominated by native species but is generally without: i) the presence of; or ii) habitat for rare, threatened, or en- dangered species”426 or (2) certain types of wetlands (i.e., acid bog, acid seep, circumneutral bog, circumneutral seep, cypress swamp, or dune and swale) that are: (i) “located in a setting more than minimally disturbed by human activity or development” or (ii) support “less than minimal wildlife or aquatic habitat or hydrologic function.”427 Class III wetlands are redefined to mean isolated wetlands that: (1) are at least one of the rare and economically important type catego- ries listed in the code (e.g., sand flat, muck flat, panne, etc.); or (2) are “located in a setting undisturbed or minimally disturbed by human activity or development and that support[] more than minimal wild- life or aquatic habitat or hydrologic function” and that are at least one of the rare and economically important type categories listed in the code (e.g., wet sand prairie, wet floodplain forest, shrub swamp, etc.).428 Class II wetlands are exempted from regulation if they are: (1) not located within the boundaries of a municipality and have an area of not more than more than three-eighths of an acre; or (2) lo- cated within the boundaries of a municipality and have an area of not more than three-fourths of an acre.429 Ultimately, fewer isolated wetlands are now covered by this state program, leaving a gap in wetland protection. In the next section, we will discuss non-regulatory actions taken in some states to increase protections for wetlands. c. Increases in Non-Regulatory Protections for Wetlands Some states chose other actions, including executive and program actions besides creating a wetland permitting program, to pursue wetland protections. Since these non-regulatory approaches can be pursued by executive action despite legislative authority that opposes wetland regulations, they offer a more flexible approach. The Biden- 425. Id. 426. IND. CODE § 13-11-2-25.8(a)(2)(A) (2024). 427. IND. CODE § 13-11-2-25.8(a)(2)(B) (2024). 428. IND. CODE § 13-11-2-25.8(a)(3) (2024). 429. IND. CODE § 13-11-2-74.5(a)(6) (2024). 122 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 Harris Freshwater Challenge is the federal example. Here we high- light efforts in North Carolina, New Mexico, and Wisconsin. North Carolina is a member of the America the Beautiful Freshwater Challenge.430 And while the legislature enacted post-Sackett wetland regulatory reforms that reduced state jurisdiction, the Governor used executive action to further wetlands protection. On February 12, 2024, Governor Roy Cooper signed Executive Order No. 305, “An Or- der to Protect and Restore North Carolina’s Natural and Working Lands."431 EO 305’s wetlands-specific goals include, by 2040, to: per- manently conserve one million new acres of North Carolina’s natural lands, with a focus on wetlands; and restore or reforest one million new acres of the state’s forests and wetlands as measured from 2020.432 The EO directs respective agencies to avoid or minimize pro- jects that would impact vulnerable wetlands such as pocosins (peat bogs); to study the social, economic, and environmental value of pro- tecting the state’s wetlands, especially wetlands that recently lost state and federal protections; “to go after federal funding to protect and restore wetlands to enhance flood resiliency, improve water qual- ity, and sequester carbon;” and “to promote and support new and on- going conservation and restoration, and climate resiliency efforts within tribal communities.”433 Governor Cooper’s EO spoke directly to the Sackett decision as well as the North Carolina General Assembly’s legislative override of the Governor’s veto of the NC Farm Bill, discussed above, as recent actions warranting further protections for wetlands.434 The EO also recog- nized the “paramount importance” of wetlands for flood control, fil- tration, aquifer regeneration, recreation, habitat, biodiversity, and re- ducing the risk of wildfire for communities.435 It also highlighted the importance of pocosins (peat bogs)—as North Carolina has the most in the world—for carbon sequestration, water quality through filtra- tion, and mitigating flood and fire risks.436 430. Freshwater Challenge, supra note 337. 431. Exec. Order No. 305 (N.C. 2024). 432. Id. 433. Id.; see also Press Release, N.C. Off. of the Governor, Governor Cooper Signs Executive Order Setting Statewide Conservation Goals for Forests and Wetlands (Feb. 12, 2024), https://governor.nc.gov/news/press-releases/2024/02/12/governor-cooper-signs-executive -order-setting-statewide-conservation-goals-forests-and-wetlands [https://perma.cc/U2DB-JQ HQ]. 434. Exec. Order No. 305 (N.C. 2024). 435. Id. 436. Id. 2025] Navigating Rough Waters After Sackett v. EPA 123 Further, the EO recognizes the increasing impacts of climate change on North Carolina including more frequent and intense hurricanes, flooding, extreme temperatures, sea level rise, and saltwater intrusion which are already impacting the state, causing more than $250 billion in damages in recent years.437 In terms of flooding, the EO notes that North Carolina is investing millions of dollars into flood resiliency ac- tivities.438 The EO also provides definitions, defining wetlands as “those areas that are inundated or saturated by surface or groundwa- ter at a frequency and duration sufficient to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”439 The definition also in- cludes a statement that wetlands generally include swamps, marshes, bogs, pocosins, bays and similar areas.440 The EO states the definition “does not depend on state or federal law” and intends to be “broader in scope than the current law.”441 New Mexico is a member of the America the Beautiful Freshwater Challenge.442 Prior to Sackett, New Mexico relied entirely on the CWA for regulatory protection of their waters and wetlands.443 New Mex- ico, as discussed above, has a state wetlands program that is not reg- ulatory. After Sackett, the focus shifted to funding wetlands mapping and monitoring. Initial efforts to pass S.B. 111 to appropriate funding to support monitoring and enforcement of water regulations and in- crease mapping did not pass.444 A similar funding effort was launched in H.B. 2, the General Appropriations Act of 2024, which ultimately passed and was signed by Governor Michelle Grisham on March 6, 2024.445 This law transfers $7 million to the water quality manage- ment fund for the “development, implementation, and administration of state surface water and groundwater permitting programs.”446 437. Id. 438. Id. 439. Exec. Order No. 305 (N.C. 2024). 440. Id. 441. Id. 442. Freshwater Challenge, supra note 337. 443. KIHSLINGER ET AL., supra note 171, at 4. 444. An Act Making an Appropriation to the Department of Environment to Provide Addi- tional Resources to Protect Water in the State, S.B. 111, 56th Gen. Assemb., 2d Reg. Sess. (N.M. 2024); See also 2024 Legislative Outcome – Protect State Waters, CONSERVATION VOTERS N.M. (Mar. 5, 2024), https://cvnm.org/2024-legislative-outcomes-protect-state-waters/ [https:/ /perma.cc/X2KW-VBL7]. 445. An Act Making General Appropriations and Authorizing Expenditures by State Agencies Required by Law, H.B. 2, 56th Gen. Assemb., 1st Reg. Sess. (N.M. 2024). 446. N.M. H.B. 2 § 5(152). 124 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:1 Wisconsin, one of the nineteen states that had an existing state wet- lands program on the books before Sackett, is another state that in- creased wetlands protections outside of regulatory efforts after the decision. Governor Tony Evers signed S.B. 222 into law on April 3, 2024.447 This Bill creates the Pre-Disaster Flood Resilience Grant Pro- gram, which provides grants for the “purpose of identifying flood vul- nerabilities, identifying options to improve flood resiliency, and re- storing hydrology in order to reduce flood risk and damages in flood- prone communities.”448 Now that the definition of WOTUS has changed resulting in limited federal jurisdiction over isolated wetlands and ephemeral streams, regulation and protection falls to states and tribes. Some states have strengthened their regulations since Sackett, but others took the chance to decrease protections to isolated wetlands and ephemeral streams, making it easier for developers or other entities to impact these water features. This has resulted in various approaches over the Nation. Water is not static; it does not conform to state or other political boundaries. Water from an upstream source can and does have impacts on downstream users, and decreased water resources in water stressed regions can have impacts on the areas. V. CONCLUSION In Sackett, the Supreme Court unsettled forty-five years of relative stability in the contested definition of which wetlands and nonperen- nial streams are covered by federal jurisdiction. The resulting nar- rowed jurisdiction, which requires a continuous surface water con- nection to a traditional navigable water, has left a gap in CWA protections for vulnerable and vital water resources such as isolated or groundwater-fed wetlands and ephemeral and intermittent streams. Sackett has left the protection of these waters, if there is to be any, to tribes and states. Tribes are uniquely positioned within the governmental structure of the U.S. as sovereign nations, and the U.S. has a trust responsibility to tribes to protect their land and natural resources, but the Court was silent in this regard when it reduced fed- eral jurisdiction. Tribes and states are now solely responsible for reg- ulating nonfederal wetlands and ephemeral and intermittent streams. States have responded by considering new legislation that either rolls back protections further to align with federal jurisdiction or creates 447. 2023 Wis. Act. 265; WIS. STAT. § 323.63 (2024). 448. WIS. STAT. § 323.63(2) (2024). 2025] Navigating Rough Waters After Sackett v. EPA 125 new regulatory programs to fill the gap. This patchwork of programs across the U.S. will result in a mismatch of programs from one area to another. Sackett’s lowered federal floor and the patchwork response to it will not be sufficient in safeguarding the chemical, physical, and biological integrity of the Nation’s waters.