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United States v. Cundiff

ELR Citation: 37 ELR 20082
Nos. No. 4:01CV-6-M, (W.D. Ky., 03/29/2007)

A district court upheld a lower court decision permanently enjoining defendants from discharging dredge and fill material on wetlands adjacent to tributaries of the navigable Ohio and Green rivers in Kentucky without complying with the Clean Water Act (CWA). The court rejected the defendants' argument that the wetlands at issue were not jurisdictional because they do not meet Justice Scalia's test in Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006). Rather, it ruled that jurisdiction can be established pursuant to either Justice Kennedy's "significant nexus" test or Justice Scalia's "relatively permanent," "continuous surface connection" test. Here, the wetlands in question, both alone and in combination with other area wetlands, "significantly affect the chemical, physical, and biological integrity" of the Green River, a traditional navigable-in-fact water. Moreover, the wetlands have a continuous surface connection with various tributaries of the Green River, making it difficult to determine where the water ends and the wetland begins. The wetlands at issue, therefore, constitute "waters of the United States" under the CWA as defined by both Justice Kennedy's test and the plurality's test in Rapanos, and the United States properly exercised jurisdiction over the site.