Wetlands Issue Brief

Policy Options

Define Wetlands as WOTS: States can include wetlands in the “waters of the state” (WOTS) definition so that wetlands are included in state permitting and water quality standards. 

• New Mexico SB 21 (Enacted 2025): Protects surface waters no longer covered by federal law.
• New York S. 9479 (Passed 2026): Would broadly define tidal wetlands as a wetland type of state significance.

Determine and Permit Activities on Wetlands: Most wetlands are no longer covered by the CWA and are subject to destruction without a state Section 404 dredge and fill permitting program. 

• Virginia HB 2181/SB 1074 (Enacted 2023): Establishes state permitting for virtually all relevant state waters, including non-tidal wetlands.
• Oregon HB 2238 (Enacted 2023): Allows the state to charge wetland permitting fees.
• A state can apply to the federal government to administer its own individual and general dredge and fill permit program, such as in New Jersey.

Monitor and Assess Wetlands: Monitoring and assessment (M&A) of wetlands can track ecological health, water filtering, and flood control to help guide conservation priorities and ensure regulatory compliance.

• The EPA has three tiers for M&A: (1) GIS data, (2) rapid assessments, and (3) intensive site assessments. Montana is an example of a state that uses tier 3 M&A, or intensive site assessments.
• Utah HB 0509 (Enacted 2026): Requires a comprehensive study and assessment of wetland status.

Protect Wetlands From Development: Protecting wetlands from development can include: (1) incentives to retire or release development or water rights; (2) establishing “no net loss” and/or “net gain” standards for wetlands; or (3) requiring buffers, zoning, or natural shore armoring.

• Nevada AB 104 (Enacted 2025): Establishes the Voluntary Water Rights Retirement Program to purchase and retire water rights.
• Delaware SB 9 (Enacted 2026): Requires no net loss of wetland acreage or function.
• California AB 2875 (Enacted 2024): Requires long-term gain and no net loss of wetlands.

Require Mitigation: Mitigation to avoid, minimize, replace, or compensate can occur through mitigation banks (Florida SB 492 (Enacted 2025) and Pennsylvania HB 2296 (Introduced 2026)); in-lieu fee programs (Illinois HB 3596 (Introduced 2026)); or conservation banking for areas with listed species (California SB 1148 (Enacted 2013)).

This resource was created by Carrie Rossman, Conservation Leadership Scholar and Master’s Student at Colorado State University.