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Texas Court First to Restrict Regulation of Waterbodies in Light of Recent Supreme Court Ruling

Texas Court First to Restrict Regulation of Waterbodies in Light of Recent Supreme Court Ruling

According to court documents, the Environmental Protection Agency argued that discharges of oil into intermittent streams are not “exempt” from the Clean Water Act even if the streams were not flowing at the time of the spill. Chevron countered that EPA has no jurisdiction over a discharge into dry waterways.

Judge Cummings based his opinion on Supreme Court Justice Anthony M. Kennedy’s recently unveiled “significant nexus” test for determining Clean Water Act jurisdiction over intermittent streams.

Jusitce Kennedy explained his reasoning as follows: “A ‘mere hydrologic connection’ should not be enough to establish a significant nexus in all cases, but rather the test should be based on whether an environmental impact within an individual stream ‘significantly’ affects traditionally navigable waters.”

Judge Cummings, relying on Justice Kennedy’s jurisdictional blueprint, held that “as a matter of law in this circuit, the connection of generally dry channels and creek beds will not suffice to create a ‘significant nexus’ to a navigable water simply because one feeds into the next during the rare times of actual flow,”

“While he prevented the Court from reversing the traditional reach of the Clean Water Act, Justice Kennedy’s opinion will create confusion into the foreseeable future,” said Scott Gollwitzer, Staff Attorney with Appalachian Voices. “Until the Army Corps of Engineers clarifies what constitutes a ‘significant nexus,’ we’ll have to live with these disappointing case-by-case jurisdictional determinations.”

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