Tag: sackett v. epa

Wetlands whipsaw: Three years after Sackett v. EPA

Published on May 29th, 2026 by - Blog Posts

America’s wetlands haven’t changed, but federal law regarding wetlands has never stopped changing in recent decades.

Federal environmental and agricultural agencies and federal courts have taken a zig-zag course, alternately strengthening and weakening Clean Water Act (CWA) protections.  In recent years, courts and the two Trump Administrations have taken direct aim at the very definition of wetlands under the 1972 CWA, opening vast areas of previously protected wetlands to development.

So far, most Michigan’s wetlands remain protected thanks to a 1979 state law that has a broader definition than the one pronounced by federal courts.  But Michigan legislators have introduced a bill (H.B. 5536) that would roll back the state’s wetlands definition to the weaker federal definition. Flow Water Advocates has resolved to stop this legislation.

This week marks the third anniversary of one of the biggest recent blows against U.S. wetlands. In Sackett v. EPA, decided on May 25, 2023, the U.S. Supreme Court eliminated CWA protections for millions of acres of wetlands.

Ignoring science, the Court ruled that the CWA covered only wetlands with a continuous surface connection to rivers, streams and other waters of the United States. But a multitude of wetlands connect through subsurface links to navigable waters. These wetlands are essential to drinking water and aquatic health, and should be protected.

Authored by Justice Samuel Alito, the SCOTUS majority opinion rejected the previous approach which had allowed the EPA and Army Corps of Engineers to regulate wetlands that were adjacent to – and ecologically or hydrologically connected to –  larger navigable waters.

“America’s wetlands provide numerous benefits, including absorbing and storing flood waters, filtering water pollution, and providing valuable fish and wildlife habitat. The Sackett ruling undermines those benefits,” said Liz Kirkwood, executive director of Flow Water Advocates.

In November 2025, the Trump Administration followed the Sackett decision with a proposed rule creating a two-part test that must be met if the wetland is covered under the CWA: The wetland “must contain surface water throughout the wet season, and [it] must be touching a river, stream or other waterbody that also flows throughout the wet season.” The Environmental Defense Council estimated the new definition would expose up to 91% of America’s non-tidal wetlands to alteration.

Maintaining Michigan’s protective definition of wetlands is vital for the state’s water quality and habitat. The 1979 state law has slowed what had been runaway wetland loss to a crawl. Prior to 1978, Michigan lost 4.27 million acres of its original 10.74 million acre of wetlands — an average annual loss of more than 30,000 acres. But between 1998 and 2005, Michigan lost only 1,157 acres annually.

EPA moves to redefine “Waters of the United States”

Published on January 21st, 2026 by - Blog Posts

On January 5, 2026, the Healing Our Waters-Great Lakes Coalition (HOW), a group of organizations (including Flow Water Advocates) that are committed to protecting water resources and communities across the Great Lakes and the Midwest region, submitted comments to the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to oppose the agencies’ proposed 2025 definition of jurisdictional water regulated under the Clean Water Act, otherwise referred to as “waters of the United States” (WOTUS).

Announced on November 17, 2025, the EPA and the Corps are allegedly “implementing” the U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency by bringing regulations into conformity with the decision. However, as the comment letter explains, this rulemaking is unnecessary and contrary to the interests of the American public, and far exceeds the changes that Sackett may require.

EPA’s proposed rulemaking includes a new definition for “continuous surface connection” which will require wetlands to meet a new two-part test:

“1) they must abut a jurisdictional water, and 2) they must have surface water at least during the wet season.”

The new definition also excludes groundwater from the definition of WOTUS, and creates a definition for “relatively permanent” waters, which would result in the removal of federal protections for millions of miles of streams. The EPA summarizes the proposed revisions here.

The agencies’ proposal is particularly concerning for the Great Lakes region. According to the Great Lakes Commission, the lakes “sustain a $6 trillion economy, contain more than 90% of North America’s supply of surface freshwater, and provide drinking water for more than 40 million people in the United States and Canada.”

Fortunately, Michigan’s Wetland Protection Act of 1979 is a shield against eroding federal protections. Indiana is not so lucky.  Wetlands perform a number of important ecological and economic functions, including water storage (which slows erosion, reduces flooding, and recharges groundwater), water filtration, and biological productivity (as wetlands are home to some of the most productive ecosystems in the world).

This new proposed definition of WOTUS is the most restrictive rule in 50 plus years of the Clean Water Act’s history, and undermines the clear intent of Congress to protect the nation’s waters from pollution. Our water resources — and especially our wetlands — are in danger as the EPA adopts a regulatory framework that treats waterways as sewers for the disposal of toxins, sewage, and industrial waste rather than as resources that should be protected.

The time to protect our waters is now. Already, the US has lost more than half of the wetlands it once had. And with the critical role that wetlands play in filtering pollutants, storing floodwater, recharging groundwater, and providing habitat, the scientific reality cannot be ignored. Our wetlands are essential, and the EPA and the Corps need to step up to protect them.

Read the Healing Our Waters-Great Lakes Coalition comments here.

Indiana Wetland Protection Rollback Threatens Great Lakes

Published on February 29th, 2024 by - Blog Posts

A new Indiana law that weakens the state’s wetland protection framework will have repercussions beyond Indiana’s borders.

Indiana’s move follows a U.S, Supreme Court ruling last year that gutted federal wetland protection under the Clean Water Act and gave states leeway to weaken their wetland protections. The ruling removed federal protection for about 50% of the nation’s wetlands. Indiana had already weakened its wetland law in 2021.

Wetlands have multiple benefits. They filter pollutants, provide habitat for fish and wildlife, and reduce flooding by storing and slowly releasing excessive flows.

Because flowing waters cross state boundaries, weakening wetland protection in Indiana will have an impact on the Great Lakes and Mississippi River watersheds.

Indiana’s new move will compound ecological damage sustained by over a century of development. The state has lost an estimated 85% of its original wetland acreage.

The Indiana law that just took effect lowers protections for the most sensitive wetlands in the state, in less developed settings that often contain rare, threatened or endangered species. 

Michigan has a stronger wetland law and program than the federal minimums. The 2023 Supreme Court ruling is having little impact on state protection of Michigan’s wetlands. Similarly, Wisconsin’s expansive wetland protection authority is limiting the impact of the Supreme Court decision.