STATE:

Why NFIB

Take Action

Get Support

Stay Informed

Podcast Podcast

Careers Careers

Join Now

Home / News / Analysis /

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

April 20, 2022

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

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

Topics:

Legal

Regulations

Get to know NFIB

NFIB is a member-driven organization advocating on behalf of small and independent businesses nationwide.

Learn More

April 23, 2026

WATCH: Update on Small Business Key Victories In the General Assembly

Issues included tax simplification and property rights.

April 23, 2026

NFIB Supports Legislation to Increase the Small Business Deduction to 23%

The Small Business Tax Cut Act would build on the success of Congress making the Small Business Deduction permanent

April 22, 2026

Supreme Court Permits Gamesmanship in Small Business Lawsuits

NFIB is disappointed by the U.S. Supreme Court’s decision in the case Enbridge v. Nessel, which concerns a defendant’s right to remove a case to federal court.

April 21, 2026

U.S. Small Business Administration to Host Mining Roundtable in Sahuarita

Join SBA Arizona for a mining-focused engagement connecting small businesses with resources, funding opportunities, and federal regulations.

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

Related Articles