Governing: States Can Impose More Environmental Regulations. That Doesn’t Mean They Should.
In the 2023 case Sackett v. Environmental Protection Agency, the U.S. Supreme Court eliminated a number of sweeping federal regulatory burdens, particularly relating to environmental issues. Some states are now deciding whether to bring them back. Before they do, lawmakers should ask whether those burdens will actually produce, for example, cleaner water.
Although 38 states have the legal authority to regulate beyond the federal baseline established in Sackett (the other 12 states’ policies prohibit such regulation), the evidence does not show that broader Clean Water Act-style regulations consistently improve water quality. Instead, new research from our organization suggests they do not. More regulation imposes significant costs on landowners, businesses and taxpayers while failing to meaningfully address today’s primary sources of water pollution.
Before Sackett, shifting and nebulous legal standards gave federal regulators broad control over ordinary activities on private property. The Environmental Protection Agency and the Army Corps of Engineers often claimed that ponds, ditches and even intermittently wet ground fell within the Clean Water Act’s reach. Landowners unaware that these features brought their property under federal control could face years of litigation, crushing fines or even jail time.
With Sackett, the Supreme Court drew a clearer line. Federal power now applies only to relatively permanent waters like rivers, lakes, other navigable waterways and wetlands that are so inseparably bound up with such waters that one cannot distinguish them. Damp dirt no longer entails federal control of private property.
But the court’s decision constrains federal agencies, not state lawmakers, and it’s likely that some states will look to fill perceived regulatory gaps. That approach is unlikely to work. A shift in pollution sources and decades of research on the efficacy of water quality regulations suggest that broad pre-Sackett Clean Water Act-style water regulation is no longer a viable option for clean water.
The Clean Water Act was designed primarily to control pollution from identifiable sources, such as factories and wastewater plants, and it has been effective for such “point-source” polluters. But today’s water-quality problems primarily come from somewhere else: stormwater, agricultural runoff and other diffuse forms of pollution spread across large areas. These “non-point sources” are poorly suited to a regulatory system built for point-source pollution.
One study examining a decade of state Clean Water Act implementation found no detectable effect on nutrient concentrations, a major cause of water impairment. More broadly, the available research shows that states with more expansive Clean Water Act-style regimes do not consistently achieve better water-quality outcomes.
Not only is Clean Water Act-style regulation ineffective for today’s pollution, but it is also costly. Federal Clean Water Act permits can take months or years and cost applicants hundreds of thousands of dollars. Those costs do not fall only on large developers. They also fall on families trying to build homes, farmers trying to improve their land and small businesses trying to expand. Even the threat of a permitting fight can deter reasonable uses of one’s land long before the state levies a fine.
Take the story of landowners Mike and Chantell Sackett, the Idaho couple at the center of the Sackett case. In 2007, they began building a modest home on their 0.6-acre lot in a fully developed residential subdivision. Federal officials soon ordered them to stop, claiming damp patches on their property were federally regulated “navigable waters.” The Sacketts faced a threat of tens of thousands of dollars in daily penalties and a legal battle that took a decade and a half.
States that want cleaner water have better options than simply reviving pre-Sackett government overreach under a different name. They can use voluntary conservation programs, restoration incentives and tools aimed directly at runoff and other non-point pollution. These approaches can protect water quality without turning ordinary land use into regulatory Russian roulette.
Sackett should not be treated as a loophole for states to close but as an opportunity to rethink government approaches to water pollution from the ground up. States may regulate beyond federal limits, but they should think twice before reviving a costly and antiquated system that burdens property owners, stifles development and does not reliably produce cleaner water.
This op-ed was originally published in Governing on August 21, 2026.
