The court rejected the definition of areas connected to
navigable waters through ditches or drains as waters of the US.
nonnavigable waters whose connections to
navigable waters were of the
Also, the case-by-case determinations of WOTUS are now limited to waters that are in one of five categories (prairie potholes, Carolina bays and Delmarva bays, pocosins, Western vernal pools, and Texas coastal prairie wetlands), waters within the 100-year floodplain of a traditionally
navigable water, or water within 4000 feet of the high tide line or ordinary high water mark of a traditionally
navigable water.
from any coverage if injured over
navigable waters, (13) but covered by
And they constitute
navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the
navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.
90) It is unlikely that a court would chose to extend Arnariak in the opposite direction; that is, allowing the State to permit activity on its
navigable waters that is otherwise barred by the MMPA.
Waddell's Lessee that once navigability for title was determined, state ownership of lands submerged by
navigable waters was fundamental to state sovereignty, subject only to powers ceded by the states to the federal government in the Constitution:
A concurring opinion by Justice Kennedy in Rapanos advocated a case-by-case approach that would allow regulation of wetlands and tributaries with a "significant nexus" to
navigable waters.
DOHSA's title from 1912 until shortly before enactment in 1920 was "[a] Bill relating to the maintenance of actions for death on the high seas and other
navigable waters.
Justice Kennedy argued that the lower courts recognized the correct test--whether there was a significant nexus between the wetland and
navigable waters that would justify Corps jurisdiction.
involve "any addition of any pollutant to
navigable waters from any
The Act defines "discharge of any pollutant" as "any addition of any pollutant to
navigable waters from any point source.
Cape Wind--the wind farm proposed in 2001 for development in Nantucket Sound off Cape Cod--has faced nearly a decade of siting and zoning issues due to concerns and litigation over scenic vistas, bat and bird migration, the placement of power lines, and federal control of
navigable waters.
Many of you will recall the
Navigable Waters Protection (NWPA) Act fiasco last year during which the government severely altered its regulatory regime by passing the Act as part of an omnibus budget bill.
Specifically, the Court held the Corps needed to demonstrate Rapanos' property possessed a "significant nexus" to
navigable waters before it could be regulated as "waters of the United States.
