United States v. Cundiff: Sixth Circuit Decision Makes Rapanos v. United States Controversy (Navigable) Water under a Bridge
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Authors
Chwee, Allyson C.
Issue Date
2010
Type
Journal Article
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Abstract
INTRODUCTION|In 1972, the United States Congress enacted the Clean Water Act ("CWA") with the goals of protecting wildlife, fish, and shellfish, guarding the recreational waters, and eradicating pollution discharged into "waters of the United States." Under Section 404 of the CWA, the United States Army Corps of Engineers ("Corps") oversaw the issuance of permits required for anyone wishing to discharge dredged or fill material into "navigable waters." For purposes of the CWA, the term "navigable waters" meant "waters of the United States." Historically, the Corps broadly interpreted the term "waters of the United States" so that CWA jurisdiction included even some wetlands neither navigable nor connected to navigable waters. Furthermore, the Corps's definition of "waters of the United States" included wetlands adjacent to other "navigable waters." In 2006, the United States Supreme Court decision in Rapanos v. United States addressed the extent of the Corps's CWA jurisdiction over wetlands neither navigable nor directly connected to "navigable waters." However, the Rapanos decision failed to decide conclusively the extent of the Corps's CWA jurisdiction over wetlands, as the case deeply divided the Court, and a majority of the Court failed to support any one opinion. Justice Scalia, joined by Justices Roberts, Thomas, and Alito, wrote for the plurality and established a two-part test to determine whether the CWA provides federal agencies jurisdiction over wetlands...
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Citation
43 Creighton L. Rev. 233 (2009-2010)
Publisher
Creighton University School of Law