Federal protection of waters under the Clean Water Act (CWA) is limited to “Waters of the United States,” or WOTUS for short. The WOTUS definition indicates where the federal government can require permits to protect rivers, wetlands, lakes, estuaries, and other waterbodies from pollution and destruction.

On May 25, 2023, the US Supreme Court issued their ruling in the Sackett v. EPA case. With this ruling, the Court delivered a catastrophic blow to our ability to protect our waters from pollution and climate disasters, undoing protections that have safeguarded our communities and waters for over 50 years.

For a more in-depth overview of WOTUS and the changes to definition over time, see our Waters of the United States webpage. 

At the state level, states have authority to protect waters that are not covered by the CWA jurisdiction. According to research by EPA and the Corps, at least half of the states “regulate at least some waters beyond the scope of federal CWA requirements.” However, some states require their regulations to mirror federal CWA regulations and some prohibit state environmental agencies from creating state regulations that go beyond federal regulations, including geographic jurisdiction.

Some states have used their authority to ensure reduced federal protections don’t pose a threat to their residents’ rights to fishable, swimmable, drinkable waters.

Lawyers for Good Government’s Wetlands Dashboard provides information on state level water and wetland protections for all 50 states, the District of Columbia, and Puerto Rico.  

Lessons from North Carolina

Across the country, the removal of protections from headwater streams and certain wetlands as a result of the 2020 Navigable Waters Protection Rule (NWPR) created uncertainty about state jurisdiction and highlighted gaps in protection. In North Carolina, some isolated wetlands were already protected by state law, but the NWPR created a gap that meant as much as 30 percent of the state’s wetlands were not protected under state or federal law. North Carolina Conservation Network, Southern Environmental Law Center, Carolina Wetlands Association and others urged  North Carolina Department of Environmental Quality to create a rule to ensure this gap was filled and wetlands were protected.

Key Policy Language

Discharges to Isolated Wetlands and Isolated Waters

“If the U.S. Army Corps of Engineers (USACE) or its designee determines that a particular water is not regulated under Section 404 of the Clean Water Act, and the water meets the definition of isolated waters in Paragraph (f) of this Rule, then discharges to that water shall be covered by this Section.” 

Isolated Wetland Definition

“”Isolated Wetland” means: (A) a wetland confirmed to be isolated by the USACE prior to June 22, 2020; or (B) a wetland that has been determined to be non-jurisdictional by the USACE after June 22, 2020 and for which an evaluation confirmed by the Division documents that a significant nexus is not present pursuant to the Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States memorandum dated December 2, 2008 (available online at: https://deq.nc.gov/about/divisions/water-resources/water-quality-permitting/401-bufferpermitting-branch/401-isolated)”

Isolated Waters Definition

“”Isolated Waters” means: (A) a surface water confirmed to be isolated by the USACE prior to June 22, 2020; or (B) a surface water that has been determined to be non-jurisdictional by the USACE after June 22, 2020 and for which an evaluation confirmed by the Division documents that a significant nexus is not present pursuant to the Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States memorandum dated December 2, 2008.”

Advocacy and Implementation Efforts

Efforts to establish this rule through the North Carolina Department of Environmental Quality (NCDEQ) goes all the way back to 1997. According to Grady McCallie, Policy Director at North Carolina Conservation Network, Supreme Court decisions and the Navigable Waters Protection Rule created a roadblock in the state’s wetland permitting jurisdiction. Isolated wetlands that did not have a permanent surface water connection but connected hydrologically were not covered by state or federal jurisdiction. Advocates from river basin, state, and national-level organizations urged NCDEQ to adopt a temporary rule, and then mobilized supporters to establish a final rule to protect wetlands. The temporary rules were adopted in May 2021 and became permanent in 2022. During the public comment period for the proposed permanent rule, several organizations submitted comments, including a petition with over 700 signatures from supportive North Carolinians. The North Carolina Farm Bureau, North Carolina Home Builders Association, and North Carolina Aggregates Association (made up of sand and gravel miners) opposed the rule. The permanent rule, Impacts to Federally Non-jurisdictional Wetlands and Classified Surface Waters, and a rule amendment to Discharges to Isolated Wetlands and Isolated Classified Surface Waters, went before the Rules Review Commission (RCC) in February 2022. Staff turnover in spring of 2022 at the RCC brought in some anti-regulatory leanings, and led to an objection to the permanent state wetlands permitting rule.

Despite this roadblock, support for protecting wetlands spans across the political spectrum. McCallie notes that “In 2016 and 2018, North Carolina experience two 500+ year hurricanes and floods, so a lot of state legislators and decisionmakers have had direct experience of the importance of wetlands for flood attenuation. In general, across the political spectrum, North Carolinians know that wetlands help reduce flooding, want them protected, and also don’t want an absolute prohibition on their development. Our messaging emphasized that balance, underpinned by the need to protect wetlands for their many benefits, especially flood reduction.”

Unfortunately, in June of 2023, following the Sackett v. EPA Supreme Court decision, the North Carolina State Legislature rolled back state-level wetlands protections so that they were the same as the new, severely reduced federal protections. This rollback left at least 2.5 million acres of North Carolina wetlands vulnerable to destruction. North Carolina’s Governor vetoed the bill containing the rollback, but unfortunately a majority of NC legislators voted to override the veto and the state protections were rolled back.

In February of 2024, in response to the rollback, the Governor issued an executive order calling on state government to:

• Permanently conserve one million new acres of North Carolina’s natural lands with special focus on wetlands
• Restore or reforest one million new acres of North Carolina forests and wetlands
• Plant one million tress in urban regions of the state