Update on this thread.

Here is a report on the case(s)[now decided] Trent noted above.

SUPREME COURT OF THE UNITED STATES
2006
RAPANOS ET UX., ET AL. v. UNITED STATES


http://www.supremecourtus.gov/opinions/05pdf/04-1034.pdf

Isolated ponds are not �waters of the United States� in their own right, see SWANCC, supra, at 167, 171, and present no boundary-drawing problem justifying the invocation of such ecological factors. Thus, only those wetlands with a continuous surface connection to bodies that are �waters of the United States� in their own right, so that there is no clear demarcation between the two, are �adjacent� to such waters and covered by the Act.

In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as �economics,� �aesthetics,� �recreation,� and �in general, the needs and welfare of the people,�


In SWANCC, we considered the application of the Corps� �Migratory Bird Rule� to �an abandoned sand and gravel pit in northern Illinois.� 531 U. S., at 162. Observing that �[i]t was the significant nexus between the wetlands and �navigable waters� that informed our reading of the CWA in Riverside Bayview,� id., at 167 (emphasis added), we held that Riverside Bayview did not establish �that the jurisdiction of the Corps extends to ponds that are not adjacent to open water.� 531 U. S., at 168 (emphasis deleted). On the contrary, we held that �nonnavigable, isolated, intrastate waters,� id., at 171�which, unlike the wetlands at issue in Riverside Bayview, did not �actually abut] on a navigable waterway,� 531 U. S., at 167�were not included as �waters of the United States.�

In sum, on its only plausible interpretation, the phrase �the waters of the United States� includes 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.� See Webster�s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps� expansive interpretation of the �the waters of the United States� is thus not �based on a permissible construction of the statute.� Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984).

[ August 05, 2006, 07:26 PM: Message edited by: ewest ]

--------------------
Ichthyusiasts read Pond Boss Magazine