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Bullet policy, statements · Jun 27, 2022

Scientific Societies File Legal Brief in Supreme Court WOTUS Case

AIBS has joined the nine members of the Consortium of Aquatic Science Societies (CASS), the Ecological Society of America, and the Society for Ecological Restoration in filing an amici curiae or “friends of the court” brief with the U.S. Supreme Court in the Sackett vs. U.S. Environmental Protection Agency (EPA) case.

The Supreme Court is set to make a decision this October on the appropriate definition of “waters of the United States” (WOTUS) to determine the scope of waters federally regulated under the Clean Water Act. In particular, the court will rule on the proper test for determining federal jurisdiction over U.S. waters.

The twelve scientific societies, which collectively represent more than 125,000 members, filed the brief because of the case’s potential impact on the integrity of aquatic ecosystems and resources in the U.S. “The Clean Water Act’s singular objective ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’— can only be achieved by considering the science that demonstrates the critical role wetlands and streams play in supporting the health of downstream and downslope waters, including traditional navigable waters such as lakes and rivers,” the groups contend.

The Sacketts argue for a narrow test when determining EPA jurisdiction, favoring the test described by Justice Antonin Scalia in the 2006 Supreme Court case Rapanos vs. United States that says a covered wetland must have a “continuous surface connection” to a navigable water. Federal courts, however, have favored the broader “significant nexus” test written by Justice Anthony Kennedy in his opinion in the 2006 case.

According to the brief filed by the scientific societies, “the significant nexus test is consistent with the science discussed in [the societies’] brief as it recognizes the contribution of wetlands and streams to the overall quality of traditional navigable waters. In contrast, Petitioners’ proposed framework rejects hydrological reality, ignoring the science behind the ways in which wetlands and streams affect traditional navigable waters. If Petitioners’ proposed ‘continuous surface-water connection’ to a traditional navigable water were required for wetlands, more than 50% percent of wetlands in some watersheds would no longer be protected by the Clean Water Act. Were such a standard applied to streams, ephemeral and intermittent streams would not be jurisdictional waters, and thus more than 90% percent of stream length in some watersheds would no longer be protected by the Clean Water Act.”

Read the amicus brief.

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