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Navigable Waters Protection Rule Does Not Require Dismissal Of Cwa Case

This Clean Water Act (CWA) case arose from the 2007 disposal of fill from Defendants’ property (containing purported wetlands) allegedly into “waters of the United States.”  United States v. Acquest Transit LLC, No. 09-CV-55S, 2021 WL 809984, at *13 (W.D.N.Y. Mar. 3, 2021).  The underlying issue is whether that property contained wetlands that are part of “waters of the United States” to be governed by the CWA.  The CWA applies to “navigable waters” which, in turn, are defined as the “waters of the United States,” 33 U.S.C. § 1362(7).

The CWA does not define the phrase “waters of the United States.”  In County of Maui v. Hawaii Wildlife Fund, 140 S.Ct. 1462, n.4 (2020), Justice Alito noted the term “waters of the United States” is not defined by the CWA and “has presented a difficult issue for this Court.”  EPA and Army Corps of Engineers regulations define “waters of the United States” ambiguously, and multiple opinions, but no majority decision, from the United States Supreme Court interprets this regulatory landscape.  Faced with the lack of decisive precedent (and absent Second Circuit guidance on the question), the District Court applied Justice Kennedy’s significant nexus standard with its case-by-case application to determine if the Site was part of the “waters of the United States.” (Docket No. 349, Order, 2020 WL 3042673, at *17).

Defendants argued the Site did not contain “waters of the United States” for CWA jurisdiction and the Navigable Waters Protection Rule (the Rule) was not applicable since it could not be retroactively applied.  Effective June 22, 2020, and codified at 33 C.F.R. s 328.3 (2020), the Rule clarifies the definition of “waters of the United States,” specifically include wetlands in that definition. 

The Court concluded since the Rule creates new regulation and does not clarify existing law, it cannot be applied retroactively.  Affirming its previous Order, the Court determined issues of fact remained as to if the Site met the regulatory standard as set forth in 2007 for “navigability