Water quality protections now depend on state and local governments—and votersWater quality protections now depend on state and local governments—and voters

State, tribal and local governments have the authority to regulate activities affecting waters within their jurisdictions. The integrity of the nation’s waters depends on informed, engaged citizens who vote in every election.

Royal C. Gardner, Hugh F. Culverhouse Professor of Law and Director of the Institute for Biodiversity Law and Policy

January 28, 2025

4 Min Read
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President Trump promised to ensure that the U.S. has the “cleanest air and water on the planet.” But his administration’s policy blueprint, Project 2025, called for eliminating federal water protections. One particular target is “waters of the United States”—or WOTUS. 

If a body of water is classified as a WOTUS, it is protected by the federal Clean Water Act. Project 2025 called for stripping WOTUS protection from wetlands, though these marshes and bogs are critical for water quality and flood control. The U.S. Supreme Court, however, has already delivered on this front.

Shortly after Project 2025 was published, the Supreme Court decided Sackett v. U.S. Environmental Protection Agency. In a 5-4 decision, the court definitively declared that the Clean Water Act covered only relatively permanent, standing or continuously flowing bodies of water such as oceans, rivers, streams and lakes. Wetlands were notably absent from that list. The court did not even recognize wetlands as “waters;” rather, in its view, the Clean Water Act covers only those wetlands that have a continuous surface connection to a water that qualifies as a WOTUS, and the wetland must be “indistinguishable” from that body of water.

The court stated that “indistinguishable” means that it is difficult to determine where the “water” ends and the “wetland” begins. Note that this standard has no basis in statute (the term “indistinguishable” does not appear in the Clean Water Act) or science (scientific research demonstrates that even wetlands without a surface connection contribute to the integrity of larger waterbodies). Moreover, as a practical matter, almost all wetlands can be delineated and thus distinguished from other waters. Yet “indistinguishable” is what the Supreme Court has decreed. 

It is difficult to understate Sackett’s effect on Clean Water Act protections for wetlands and other waters. Because only “relatively permanent, standing or continuously flowing bodies of water” are covered, ephemeral streams—which flow for only short durations after rain or snowmelt—are eliminated. It also calls into question whether jurisdiction exists over intermittent streams, which by definition, are not continuously flowing. The most significant impact will be in the arid West, where more than 80% of streams are ephemeral or intermittent.

The EPA reports that up to 63% of wetlands could lose protection. But this figure is almost certainly an underestimate, because it does not take into account the indistinguishable requirement. Although the EPA may wish to portray the repeated “indistinguishable” references in Sackett as mere rhetorical flourishes having no independent utility, the lower courts are disagreeing. For example, in August 2024, a U.S. District Court in Idaho dismissed an EPA enforcement action because the agency had failed to explain how the wetlands were indistinguishable from the river. Similarly, at the end of December 2024, a U.S. District Court in Florida dismissed a wetland enforcement case in part because the wetland was distinguishable from other waterbodies. 

An initial analysis applying the indistinguishable test to wetlands in Wisconsin found that nearly 90% would lose protection. Researchers at Stetson University in Florida found that almost all freshwater wetlands in the greater Everglades watershed are no longer WOTUS. A nationwide study by the Environmental Defense Fund revealed consistent results across the country, when taking the indistinguishable requirement into account.

In short, Sackett is a near-extinction event for Clean Water Act protection of freshwater wetlands. 

What more damage might the incoming Trump administration inflict? It could codify the “indistinguishable” requirement in regulation, but these losses are already locked in. More significant, the Trump EPA could seek to redefine WOTUS to exclude intermittent streams. The first Trump administration considered such a step, but ultimately backed down. But the Supreme Court decision in Sackett will only embolden the new administration.

In response, clean water advocates and concerned citizens must play both defense and offense. 

At the federal level, Congress will be hostile to strengthening federal water quality protections. Here, a defensive posture is required to prevent further erosion, such as eliminating intermittent streams from WOTUS. But the real action moves to the state and local level.

Sackett only dealt with the authority of the federal government under the Clean Water Act. It did not touch the authority of state, tribal and local governments to regulate activities affecting waters within their jurisdictions. States continue to have the general police power to regulate conduct within their borders. Tribes generally have the same authority, and local governments may as well.

Some states, such as Colorado and New York, have enacted legislation to fill some of the gaps. And efforts continue elsewhere, such as in Illinois and New Mexico. But other states, like North Carolina, have moved in the opposite direction, reducing state protections.

Some local governments too have sought to diminish wetland protections. In Manatee County, Fla., the county commission voted to reduce buffer requirements for developers, despite widespread public opposition. In the subsequent election in August 2024, however, five county commissioners were voted out of office, and the new commission is moving to reinstate the wetland protection policy.  

As Manatee County demonstrates, the integrity of the nation’s waters depends on informed, engaged citizens who vote—and vote in every election, from municipal to county to state to federal.

About the Author

Royal C. Gardner

Hugh F. Culverhouse Professor of Law and Director of the Institute for Biodiversity Law and Policy, Stetson University

Royal C. Gardner, the Hugh F. Culverhouse Professor of Law and Director of the Institute for Biodiversity Law and Policy at Stetson University, is the author of Waters of the United States: POTUS, SCOTUS, WOTUS and the Politics of a National Resource

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