Clean Water Current

NACWA filed an amicus brief with the U.S. Supreme Court on June 17 in the long-running case concerning the scope of federal Clean Water Act (CWA) jurisdiction over “waters of the United States” (WOTUS), Sackett v. EPA. 

NACWA’s brief does not weigh in on any potential “test” for determining which waters should fall under the WOTUS definition.  Rather, it addresses two important issues that have been raised by various parties throughout the litany of WOTUS litigation.

First, NACWA’s brief rebuts claims made by certain think tanks that the CWA is an “unconstitutional delegation” of legislative authority by pointing out that, in limiting the CWA’s reach to “navigable waters,” Congress provided the requisite intelligible principle to guide the agencies’ decision making.

NACWA also notes that judicial chaos and legal uncertainty could stem from any “nondelegation” finding, as the CWA’s federal regulatory regime displaces what would otherwise be a legal landscape dictated by activist lawsuits.  As the brief explains, such an outcome would cripple the ability of public utilities to make long-term infrastructure investments and provide affordable and sustainable clean water services to communities throughout the country. 

Separately, NACWA’s brief responds to environmentalists’ claims that EPA and the Army Corps do not have the authority to exclude waters from the CWA’s reach where doing so would serve environmental, regulatory, or efficiency aims.  The brief argues that the text and structure of the CWA support the agencies’ longstanding exclusions for stormwater management features and waste treatment systems, and in fact mandate the exclusion of groundwater.  The brief also makes the case that any limits on the agencies’ ability to exclude such features would threaten the ability of clean water utilities to utilize green infrastructure and other innovative water management practices. 

NACWA was represented on the brief by NACWA Legal Affiliate Baker Botts.  The Supreme Court is set to hear oral argument on the case on the first day of its next term, October 3, 2022. 

Please contact NACWA’s General Counsel, Amanda Aspatore, with any questions.