States’ Wetlands Permitting Statutes
The Clean Water Act (“CWA”) is widely known as the federal government’s primary statute regulating water pollution within the United States. When passing the law, Congress declared that the purpose of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To fulfill that purpose, the CWA has established permitting programs under section 402 and section 404 of the statute that require anyone who discharges a pollutant from a point source into a “water of the United States” to receive a permit from either the Environmental Protection Agency (“EPA”) or the United States Army Corps of Engineers (“the Corps”). Because these permitting programs are only applicable to discharges made into “waters of the United States,” otherwise known as “WOTUS,” understanding which waters fall under that definition is crucial for anyone who may be regulated under the CWA. However, the CWA is not the only law that uses a permit program to regulate water pollution in the United States. Many states have their own state laws that have established permitting programs for discharges of pollutants made into state waters or wetlands. Following a United States Supreme Court opinion issued in 2023 which narrowed the scope of the CWA, it is important to know which states require a permit prior to discharging pollutants into a state wetland.
In 2023, the United States Supreme Court issued the landmark ruling Sackett v. EPA. That decision clarified, for the first time, that the CWA’s definition of WOTUS includes only those wetlands that share a “continuous surface connection” with a recognized WOTUS such that it is “difficult to determine where the water ends and the wetland begins.” Specifically, the Court stated that a wetland was be “indistinguishably part of a body of water that itself constitutes [a WOTUS]” in order to fall under the CWA’s permitting jurisdiction. For an in-depth look at the Sackett decision, click here.
Months after the Supreme Court issued its ruling in Sackett, EPA updated the definition of WOTUS to conform to the Court’s decision. Under the current WOTUS definition, only those wetlands that have a “continuous surface connection” with a water recognized as a WOTUS will be subject to CWA permitting decision. As a result of that update, roughly half of the nation’s wetlands fall outside the jurisdiction of the CWA and discharges of pollutants or dredged or fill material into those wetlands no longer requires a federal permit.
While the Sackett decision limits the federal government’s wetland permitting authority under the CWA, it does not affect state wetland permitting authority. Many states had existing wetland permitting programs prior to the Sackett decision being issued, and a few have taken steps to adopt new programs or expand existing ones since the decision was made. Because these laws are state-specific, they tend to vary from one another in different ways to address the needs of each different state. For example, states that have a shoreline may treat coastal wetlands differently from inland wetlands, while some northern states have specific protections for wetlands that border the Great Lakes.
The chart below identifies whether a state has laws and regulations establishing a wetland permitting program for wetlands located within the state’s boundaries. For the states that have such laws or regulations, the chart also notes whether a permit holder is required to mitigate expected impacts to wetlands, and if the state law exempts any activities from permitting requirements. The text of each law can be accessed by clicking links in the chart below. Last updated January, 2025.