NFIB Calls on Supreme Court to Clarify Waters of the United States (WOTUS) Standard

Date: April 20, 2022

SCOTUS will hear case to finally clarify unclear and confusing federal standard

On April 18, NFIB filed an amicus brief in the case Sackett v. Environmental Protection Agency with the U.S. Supreme Court. The case is meant to clarify what bodies of water federal authorities may regulate under the Clean Water Act (CWA). 

NFIB’s brief argues that the Court should reverse a Ninth Circuit decision determining whether wetlands are waters of the United States under the CWA. NFIB also argues that the Supreme Court should clarify that the Rapanos plurality test, a standard proposed by four Supreme Court Justices in a 2006 case concerning the CWA, is the proper test for determining the outer bounds of federal authority. 

Under the CWA, the “Waters of the United States Rule”, or WOTUS Rule, determines which bodies of water fall under federal jurisdiction. Over the years, presidential administrations have applied very different standards regarding when the federal government has jurisdiction – and can regulate – wetlands. The Biden Administration has attempted to reinstate an extremely broad interpretation of the CWA that would radically expand federal authority over private property wetlands across the country. Under this extreme standard, owners would be required to acquire federal permits for lands that are dry most of the year. 

“For years, small business owners have dealt with ever-changing standards regarding what bodies of water federal agencies can regulate under the Waters of the United States rule,” said Karen Harned, Executive Director of the NFIB Small Business Legal Center. “Small businesses need a clear and consistent standard, and we are hopeful the U.S. Supreme Court will adopt the Rapanos plurality test as the proper WOTUS standard and won’t return to an extreme interpretation of the Clean Water Act.” 

NFIB filed the brief this week alongside The Cato Institute, Associated General Contractors of America, Mountain States Legal Foundation, and Washington Legal Foundation. NFIB also previously filed an amicus brief supporting the petition for the Supreme Court to hear Sackett v. Environmental Protection Agency and determine a proper standard for when wetlands fall within the definition of “waters of the United States” subject to the federal Environmental Protection Agency’s jurisdiction under the CWA.   

Small business owners have fought federal overreach on this issue for years, and at last the issue will be decided by the U.S. Supreme Court. The case has been set for the 2022 Term, which starts in October. In the meantime, if you are concerned with the Biden Administration’s overreaching attempts to expand WOTUS, let your lawmakers know about your concerns here. 

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