June 24, 2022

AG Bonta Joins Coalition Filing Amicus Brief on Scope of Clean Water Act

Bernard Nash

Cozen O'Connor

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Cozen O'Connor

California AG Rob Bonta joined a coalition of seventeen states and the District of Columbia in filing an amicus brief in the Supreme Court case Sackett v. EPA, which urges the Court to extend the protections of the Clean Water Act to certain wetlands.
Specifically, the AG amici argue for a broad definition of the phrase, “waters of the United States,” as used in the CWA, to expand the scope of the CWA to include wetlands with a “subsurface water or other hydrological connection to navigable waters,” rather than limiting it to navigable waters alone.
The brief contends that the Court’s adoption of the “significant nexus” test articulated in a concurrence by former Justice Kennedy in the case of Rapanos v. U.S is essential to fulfilling Congress’s intent in enacting the CWA because of the effect pollution in wetlands can have on adjacent waters. The test also would protect the balance between federal and state authority established by the CWA and would provide a familiar, workable standard that has been effectively applied and used in a range of previous regulatory, legal, and administrative situations.

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