Advocating for Science: Amici Curiae Brief of Wetland and Water Scientists in Support of the Clean Water Rule

Wetlands (2019) 39:403–414

12 Pages Posted: 29 Jun 2020

See all articles by Royal C. Gardner

Royal C. Gardner

Stetson University - Institute for Biodiversity Law and Policy

Erin Okuno

University of Miami School of Law

Steph Tai

University of Wisconsin Law School

Carol A. Johnston

South Dakota State University

James Perry

affiliation not provided to SSRN

Charles A. Simenstad

University of Washington

Tanner Benjamin Reed

affiliation not provided to SSRN

R. Eugene Turner

Louisiana State University, Baton Rouge

Joy Zedler

University of Wisconsin - Madison

Date Written: May 22, 2019

Abstract

The Trump administration has proposed replacing the Clean Water Rule, a 2015 regulation that defined the statutory term "waters ofthe United States" to clarify the geographic jurisdiction of the Clean Water Act. Since its promulgation, the Clean Water Rule has been subjected to numerous judicial challenges. We submitted an amici curiae brief to the United States Court of Appeals for the Sixth Circuit, explaining why the Clean Water Rule, and its definition of "waters of the United States," is scientifically sound. The definition of "waters of the United States" is a legal determination informed by science. The best available science supports the Clean Water Rule’s categorical treatment of tributaries because compelling scientific evidence demonstrates that tributaries significantly affect the chemical, physical, and biological integrity of traditional navigable waters (primary waters). Similarly, the best available science supports the Clean Water Rule’s categorical treatment of adjacent waters based on geographic proximity. Compelling scientific evidence demonstrates that waters within 100 ft of an ordinary high water mark (OHWM) significantly affect the chemical, physical, and biological integrity of primary waters, as do waters within 100-year floodplains and waters within 1500 ft of high tide lines of tidally influenced primary waters or OHWMs of the Great Lakes. This review article is adapted from that amici brief.

Keywords: Clean Water Act, Waters of the United States, Wetlands, Navigable waters, Significant nexus, Regulation

JEL Classification: K32, K23, Q2, Q25, Q28

Suggested Citation

Gardner, Royal C. and Okuno, Erin and Tai, Steph and Johnston, Carol A. and Perry, James and Simenstad, Charles A. and Reed, Tanner Benjamin and Turner, R. Eugene and Zedler, Joy, Advocating for Science: Amici Curiae Brief of Wetland and Water Scientists in Support of the Clean Water Rule (May 22, 2019). Wetlands (2019) 39:403–414, Available at SSRN: https://ssrn.com/abstract=3619465

Royal C. Gardner (Contact Author)

Stetson University - Institute for Biodiversity Law and Policy ( email )

1401 61st Street South
Gulfport, FL 33707-3299
United States

Erin Okuno

University of Miami School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

Steph Tai

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Carol A. Johnston

South Dakota State University ( email )

2220 10th St Apt #1
Brookings, SD South Dakota 57007-0895
United States

James Perry

affiliation not provided to SSRN ( email )

Charles A. Simenstad

University of Washington ( email )

Seattle, WA 98195
United States

Tanner Benjamin Reed

affiliation not provided to SSRN

R. Eugene Turner

Louisiana State University, Baton Rouge ( email )

Baton Rouge, LA 70803
United States

Joy Zedler

University of Wisconsin - Madison ( email )

716 Langdon Street
Madison, WI 53706-1481
United States

Do you want regular updates from SSRN on Twitter?

Paper statistics

Downloads
22
Abstract Views
265
PlumX Metrics