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Will Sackett Case Untangle WOTUS Knot?
| 题名： | Will Sackett Case Untangle WOTUS Knot? |
| 正文语种： | eng |
| 摘要： | On December 30, the Environmental Protection Agency quietly announced that it had issued yet another "final" rule-making that defines "waters of the U.S." The term has been a political football ever since the 2006 Supreme Court decision in Rapanos v. United States, which was a fractured 4-4-1 decision. The case involved a landowner who faced significant penalties for backfilling on his property. Four justices voted to affirm, four to vacate. Justice Antonin Scalia s plurality dissent argued that "waters of the U.S." could be "only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." Justice Anthony Kennedy attempted to square the circle-or split the baby, as some see it-in his concurring opinion, with his "significant nexus" test for when a waterway or water feature becomes "hydrologically connected" to a regulated navigable waterway and so becomes regulated itself. But the ruling created more questions than it answered. We know what a "navigable waterway" is: one that is navigable by either recreational or commercial craft. But what, exactly, is a "hydrological" connection that forms a "significant nexus" to a navigable waterway? What does it mean to be "adjacent" to a navigable waterway? What about wetlands next to a river or waterway? How far should the connection extend? 100 feet? Several miles? Can the connection be underground, or above ground? When does a hydrologic connection stop being "significant"? Who determines? According to whose measurements? What about transitory water features that appear and disappear with the rains? |
| 出版年： | 2023 |
| 期刊名称： | The Waterways Jouranl |
| 卷： | 136 |
| 期： | 41 |
| 页码： | 4-4 |
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