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.
