U.S Supreme Court to Hear Case Determining What Qualifies Under Waters of the United States (WOTUS)

Date: February 17, 2022

After years of uncertainty for small business owners, SCOTUS can provide clarity next term

After a lengthy legal battle, the U.S. Supreme Court has decided to hear a case clarifying what bodies of water federal authorities may regulate. This comes after the Biden Administration’s attempts to reinstate controversial water regulations that would radically expand federal authority over private property wetlands across the country. 

Under the Clean Water Act (CWA), the federal government maintains regulatory authority of certain bodies of water. Under the CWA, the “Waters of the United States Rule”, or WOTUS Rule, determines which bodies of water are under federal jurisdiction. Under the CWA, the scope of jurisdiction to regulate under the Act extends to “waters of the United States.”  Over the years, presidential administrations have varied in how broad or narrow this jurisdiction is.   

In 2020, the Trump Administration issued the Navigable Waters Protection Rule (NWPR), which provides greater clarity and certainty for small businesses, especially small farmers, ranchers, and property owners/developers. However, the Biden Administration has sought to repeal the NWPR and replace it with a rule that would again expand federal jurisdiction.  

If the Biden Administration is successful, it would mean a return to an extreme interpretation of the CWA that’s in contrast to federal law and would require owners to acquire federal permits for lands that are dry most of the year. 

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. Specifically, the Supreme Court will 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.  

In October 2021, NFIB joined The Cato Institute in filing an amicus brief supporting the Sackett v. Environmental Protection Agency petition for review at the Supreme Court.  

NFIB will continue to update small business owners on this important issue as new developments arise. 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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