Appellate Case May Test When 'adjacent' Waters Fall Under Water Act

摘要

A federal appellate court is preparing to hear oral arguments in a case that could determine when wetlands adjacent to navigable waters are subject to regulation under the Clean Water Act (CWA), the latest turn in courts' struggles to define the scope of the law in the wake of recent high court rulings on the issue. The U.S. Court of Appeals for the 2nd Circuit is considering Simsbury-Avon Preservation Society v. Metacon Gun Club, a case that is seeking to determine whether lead shot from a local gun club is migrating into wetlands, and whether those wetlands fall within the water law's scope. Much of the legal argument has focused on narrower questions of whether the wetlands at issue are jurisdictional under the water law. However, legal briefs filed by amicus parties, including the Department of Justice (DO J), environmentalists and major industry groups are offering competing arguments over how courts should apply a 1985 Supreme Court ruling-United States v. Riverside Bayview Homes, which held that wetlands adjacent to navigable waters are jurisdictional-in the wake of the high court's 2006 decision in Rapanos, et ux., et al. v. United States.