Standing Water: Great Lakes States’ Wetlands Protections Post-Sackett
Jay Gerber
The Supreme Court’s Sackett ruling profoundly changed how the Environmental Protection Agency and the United States Army Corps of Engineers enforce America’s premier water resource protection statute, the Clean Water Act, for wetlands.[1] Prior to this decision, wetlands containing a “significant nexus” with an adjacent navigable water were protected under federal jurisdiction, as Waters of the United States (WOTUS).[2] The WOTUS designation determines if a project or activity requires a federal permit to discharge to, dredge, or fill a wetland.[3] The significant nexus test included all wetlands, either standing alone or within similar situated lands, if their water quality could affect the physical, chemical, or biological integrity of an adjacent navigable water.[4] After Sackett, the significant nexus test was discarded, in favor of a more determinant, but less protective “continuous surface water connection” test, where the wetland must have a year-round surface connection to an existing navigable water to achieve federal jurisdiction and protection.[5] While some wetlands do have a perennially continuous surface water connection, many do not, providing only a hydrological connection through subterranean groundwater.[6]
Wetlands are incredibly important to ecological communities.[7] Wetlands filter pollution from runoff, are sinks for excess nutrients, provide baseflow for headwater streams, mitigate flooding, and support a disproportionate number of threatened and endangered species.[8] All wetlands, to some extent, filter pollution and collect nutrients, though smaller wetlands, with no clear surface connection to a larger waterbody, are often more effective as they retain water longer.[9]
Wetlands within the Great Lakes basin are paramount to the health of the Lakes.[10] Boasting one of the largest freshwater ecosystems in the world, the Great Lakes generate over $50 billion in economic activity.[11] Yet, the lakes remain threatened from a variety of pollutants, including industrial discharges, agricultural runoff, pesticides, and microplastics.[12] These threats could be exacerbated by the loss of protected wetlands as the primary natural filter to the Great Lakes, following the Sackett decision.[13]
Nationally, with 60-84% of once protected wetlands now at risk of losing federal WOTUS protection (an area the size of South Carolina),[14] the question remains in how the patchwork of state water protection laws fill this gap. Many states have their own water protection statutes, while others mirror the baseline federal Clean Water Act post-Sackett standard.[15] These protections range from near total state jurisdiction of every waterbody within the state regardless of size, such as seen with Maryland and Virginia, to unfettered permission to fill non-WOTUS wetlands in Texas and Oklahoma.[16]
Fortunately, for the Great Lakes, each of the eight Great Lakes states have more stringent protections for non-WOTUS waters than the federal Sackett standard,[17] though they vary state to state.[18] In most cases, protections are defined as requiring a permit from the state and/or federal government to dredge, fill, or discharge into a wetland. The following explains variances among Great Lakes states:
Wisconsin
Wisconsin generally requires authorization or an individual wetland permit to discharge fill into a non-WOTUS wetland.[19] There are three exceptions to this statutory requirement. The first is a discharge of fill to artificial wetlands.[20] The second applies to discharges into a wetland in an urban area which meets all the following criteria: the discharge affects less than one acre of wetland per parcel, the discharge does not affect a rare or high quality wetland, and the activity is conducted in accordance with a stormwater management ordinance or discharge permit.[21] The last exception applies to wetlands outside of urban areas where the discharge affects less than three acres per parcel, the discharge does not impact a rare or high quality wetland, and the development related to the discharge must be for a structure, driveway, or road, with an agricultural purpose.[22] Wisconsin requires mitigation on wetland impacts greater than 1.5 acres.[23] While approximately one million of the nearly six million acres of wetlands within Wisconsin lack a continuous surface water connection, much of these remain protected through state regulations.[24]
Minnesota
The Minnesota Wetland Conservation Act, passed in 1991, has undergone several revisions with the latest occurring in October 2025.[25] Minnesota has a “no-net loss” policy, which covers most wetlands within the state.[26] Generally, wetlands must be replaced by actions providing at least equal public value under a replacement plan.[27] While complex, the law contains some exemptions for agricultural, utilities, and forestry uses or de minimis uses that impact less than 0.25 acres of wetlands.[28] In some cases, these exemptions are determined by the type of wetland, based on a mix of physical or biological features.[29] While some wetlands are not protected by state or federal statute, primarily due to exemptions, most retain their protection post-Sackett.
Illinois
Illinois historically relied on the federal Clean Water Act for wetland protection.[30] Wetlands on private lands were mostly regulated under federal standards, while the state could exercise more discretion on state-funded projects and activities impacting wetlands.[31] The holding in Sackett, and subsequent Trump Administration rules, led to an estimated 72% decline in protected wetland acreage within Illinois.[32] Consequently, the Illinois legislature has advanced House Bill 3596 (Wetlands Protection Act) out of committee, which applies the former “adjacent or significant nexus” test to most wetlands within the state.[33] The statute has gained considerable traction and would restore state jurisdictional wetlands to pre-Sackett protections.[34]
Indiana
Following passage of the Clean Water Act, Indiana initially added further protections to wetlands including those deemed non-WOTUS in 2003, with the State Regulated Wetlands Law.[35] However, in 2021 and again in 2024, Indiana took the rare steps of decreasing its wetland protection, amending the State Regulated Wetlands Law.[36] These amendments exempted some lower classes of wetlands, as defined by the state, then moved some higher class wetlands to lower classes, allowing less mitigation.[37] Indiana is the only state within the Great Lakes basin that intentionally removed protections following Sackett. Only 20% of Indiana’s wetlands are currently protected by state or federal laws.[38]
Michigan
Michigan passed the Natural Resources and Environmental Protection Act in 1994, strengthening protections for wetlands.[39] Generally, Michigan protects nearly all wetlands within the Greak Lakes basin.[40] This protection includes if the wetland is connected to one of the Great Lakes, or Lake St. Clair, within 1,000’ of one of the Great Lakes or Lake St. Clair, connected to or within 500’ of an inland lake, pond, river, or stream, or greater than five acres in size.[41] If a wetland is outside the Great Lakes basin, it is protected if greater than five acres in size or deemed essential to the preservation of the state’s natural resources.[42] Like many of other states, Michigan does provide some exemptions for agricultural and other activities.[43]
Ohio
Ohio classifies wetlands into one of three categories based on quality and function.[44] Generally, Ohio requires permits to fill, drain, or alter isolated wetlands, including those removed from federal protection by Sackett, with some exceptions.[45] If the wetland is classified as Category 1, a permit must be obtained by the Ohio EPA if impacting a wetland greater than 0.5 acres.[46] If the wetland is less than 0.5 acres, the activity is covered the state’s General Permit, though a pre-activity notice is required. Discretion is then left to the director to determine if a permit is required for the activity.[47] All Category 2 and 3 wetlands are protected by statute, regardless of size.[48] Some additional exemptions exist for agriculture, ranching, and silviculture.[49] Mitigation is generally required for impacts to wetlands, except for the exemptions listed above.[50]
Pennsylvania
Under its Clean Streams Law, Pennsylvania protects nearly all waterbodies within the state.[51] All encroachments or waterbody obstructions must be permitted unless the activity meets one of several exemptions, including some utility construction, farming purposes, water treatment facilities, or small private personal crossings with minimal impacts.[52]
New York
New York passed the Freshwater Wetlands Act in 1975 to preserve, protect, and conserve freshwater wetlands and their benefits.[53] For a wetland to meet state jurisdictional requirements, the wetland must be 12.4 acres, or greater, in size, though in 2028, the threshold will decrease to 7.4 acres. A wetland may also receive New York jurisdiction if it contains one, or more, “unusual” importance criteria.[54] These criteria include wetlands mitigating significant flooding, containing rare plants or animals, vernal pools, are of local or regional significance, previously mapped as a wetland, a floodway, or has a significant importance to protecting water quality within the state.[55] Since about 75% of New York’s wetlands are less than six acres, the state’s wetlands stand to lose considerable protection post-Sackett.[56]
Conclusion
With no doubt, the Supreme Court’s Sackett decision limited protections for a significant portion of the country’s wetlands. Only time will tell, particularly with increasing population and infrastructure growth in suburbs, continued deforestation, and increased stormwater runoff, if the country’s wetlands can continue to mitigate pollution and flooding as their protections decrease.
However, most of the Great Lakes states remain a relatively bright spot in the renewed battle to conserve wetlands. Pennsylvania, Minnesota, Michigan, Ohio, and Wisconsin lead the charge, with relatively strong wetlands statutes. While New York and Illinois currently have less protective measures on their books than their peers, each have recently sought legislative remedies to allay potential damage done by the Sackett holding. While Indiana has sought to loosen wetland protection, their regulations are still more stringent than states simply mirroring the post-Sackett WOTUS standard. More can always be done to protect some of the most valuable environmental features within the Great Lakes, but we can at least feel fortunate knowing many of the Great Lakes states have prioritized remaining good stewards to the resources the public has given them the privilege to protect.
[1] Sackett v. Environmental Protection Agency, 143 S. Ct. 1322, 1322 (U.S. 2023).
[2] Rapanos v. United States, 126 S. Ct. 2208, 2236 (U.S. 2006).
[3] 33 U.S.C. § 1342, 1344.
[4] Rapanos, 126 S. Ct. at 2248.
[5] Sackett, 143 S. Ct. at 1341.
[6] Myth-busting Misconceptions About “Isolated” Wetlands, WIS. WETLANDS ASS’N (Dec. 13, 2017) https://www.wisconsinwetlands .org/updates/myth-busting-misconceptions-about-isolated-wetlands/ (Last visited Apr. 19, 2026).
[7] See Matthew Cohen et al., Do Geographically Isolated Wetlands Influence Landscape Functions? 133 PROCS. OF THE NAT’L ACAD. OF SCI. 1978, 1979 (2016).
[8] Bo Yang et al., Small Wetlands: Critical to Flood Management, 386 SCI. 859, 859-60 (2024); Frederick Cheng and Nandita Basu, Biogeochemical hotspots: Role of small water bodies in landscape nutrient processing, 53 WATER RES. RCH. 5038 (2017).
[9] Adam Gold, Putting WOTUS on the Map: Estimating the Implications of Sackett v. EPA on Wetland Protections, 38 TUL. ENV’TL. L.J. 269, 269-77 (2025).
[10] Why Monitoring of the Great Lakes Coastal Wetlands is Important, ENV’TL PROT. AGENCY (March 9, 2026), https://www.epa.gov/great-lakes-monitoring/why-monitoring-great-lakes-coastal-wetlands-important (Last visited Mar. 15, 2026).
[11] Id.
[12] Protecting the Great Lakes, ENV’TL L. AND POLICY CTR. (2025), https://elpc.org/projects/protecting-the-great-lakes/ (Last visited Apr. 19, 2026); The Great Lakes of Plastics, SIERRA CLUB (Nov. 11, 2024) https://www.sierraclub.org/michigan/blog/2024/11/great-lakes-plastic (Last visited Apr. 19, 2026).
[13] Wetlands and Streams Most in Danger After the U.S. Supreme Court’s Sackett v. EPA Ruling, EARTHJUSTICE (May 14, 2024), https://earthjustice. org/feature/sackett-epa-wetlands-supreme-court-map (Last visited Apr. 19, 2026).
[14] New Report Reveals Massive Loss of Wetland Protections After Supreme Court’s Sackett Decision, NAT. RES. DEF. COUNS. (Mar. 24, 2025), https://www.nrdc.org/press-releases/new-report-reveals-massive-loss-wetland-protections-after-supreme-courts-sackett (last visited Mar. 14, 2026).
[15] R. Kihslinger et al., Filling the Gaps – Strategies for States/Tribes for Protection of Non-WOTUS Waters, ENV’TL L. INST. (May 2023) https://www.ecos.org/wp-content/uploads/2023/08/Filling-the-Gap-ELI-WOTUS.pdf (last visited Mar. 15, 2026).
[16] Id.
[17] Id.
[18] Id.
[19] WIS. STAT. § 281.36 (2024).
[20] Id.
[21] Id.
[22] Id.
[23] Navigating Newly Non-WOTUS Wetlands: A Study of Six States’ Wetland Programs After Sacket v. EPA – Wisconsin Supplement, ENV’TL L. INST. (Sep. 2024). https://www.eli.org/sites/default/files/files-pdf/1%20Wisconsin%20Supplement%20PDF.pdf (last visited Apr. 19, 2026).
[24] Id.
[25] MINN. STAT. § 103G.222 (2025).
[26] Id.
[27] Id.
[28] MINN. STAT. § 103G.2241 (2025).
[29] Id.
[30] State Wetland Protection: Status, Trends, & Model Applications – Illinois, ENV’TL L. INST. (2008), https://www.eli.org/sites/default/files/docs /core_states/Illinois.pdf (last visited Apr. 19, 2026).
[31] Id.
[32] Advocates Celebrate Step Forward for Wetlands Protection, ILL. ENV’TL COUNCIL (Mar. 18, 2026), https://ilenviro.org/release-advocates-celebrate-step-forward-for-wetlands-protection/ (last visited Apr. 19, 2026).
[33] Wetland Protection Act, H.B. 3596, Reg. Sess. (Ill. 2026).
[34] Id.
[35] Protecting Indiana’s Isolated Wetlands, HOOSIER ENV’TL COUNCIL (Apr. 13, 2025), https://www.hecweb.org/indiana-isolated-wetlands/ (last visited Apr. 19, 2026).
[36] Id.
[37] Id.
[38] What are Wetlands for, Anyway?, GREAT LAKES NOW (July 10, 2023), https://www.greatlakesnow.org/2023/07/10/what-are-wetlands-for-anyway/ (last visited Apr. 19, 2026).
[39] MICH. COMP. LAWS § 324 (2013).
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] OHIO REV. CODE ANN. § 6111 (2015).
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] The Clean Streams Law, 35 PA. STAT. AND CONS. STAT. ANN. §§ 691.1–691.1001 (West (1937)).
[52] PA. STAT. AND CONS. STAT. ANN. 25 § 105 (West (2013)).
[53] Freshwater Wetlands Program, N.Y. DEP’T OF ENV’TL CONSERVATION (Apr. 8, 2026) https://dec.ny.gov/nature/waterbodies/wetlands/freshwater-wetlands-program (last visited Apr. 19, 2026).
[54] Id.
[55] Id.
[56] National Water Summary – New York Wetland Resources, U.S. FISH AND WILDLIFE SERV. (1996) https://www.fws.gov/sites/default/files/ documents/National-Water-Summary-Wetland-Resources-New-york.pdf (last visited Apr. 19, 2026).