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NACWA Files Amicus Brief Defending Wastewater Impact Fees from Constitutional Challenges

Dec 1, 2021

NACWA joined with the North Carolina Water Quality Association (NCWQA) this week on an amicus brief supporting a North Carolina county’s collection of uniform water and sewer impact fees from claims by developers that such fees are unlawful “takings” under the Fifth Amendment of the U.S. Constitution.    

The developers, joined by the North Carolina Homebuilders Association and national litigious property rights group the Pacific Legal Foundation (PLF), are appealing a lower court decision upholding the lawfulness of the county’s fees to the North Carolina Supreme Court. 

Many NACWA public utility members charge modest impact fees to developers to recover the costs of the water and sewer infrastructure required for new development, and NACWA joined NCWQA’s amicus effort because the court’s decision will both directly impact NACWA’s North Carolina members and could have negative ripple effects throughout the country should a state high court determine that such fees are federally unconstitutional. 

NACWA and NCWQA’s brief argues that water and wastewater impact fees clearly fall within the realm of what the US Supreme Court has found are not government “takings” subject to a Fifth Amendment analysis, that such fees are necessary to fairly apportion the cost of wastewater services, and that applicable state laws ensure that such fees are reasonable. 

NACWA’s brief also combats PLF and the Homebuilders’ claims that such fees are discriminatory in that they discourage low-income housing development by pointing out that, in fact, the fees are necessary to ensure that local communities and residents (including low-income residents) do not have to subsidize developers’ investments and pad their profit margins. 

NACWA was represented by Legal Affiliate AquaLaw in the litigation, Anderson Creek Partners, et al. v. Harnett Co

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

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