U.S. Court of Appeals for the Second Circuit

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Second Circuit rules on federal regulation of wetlands under Clean Water Act

July 31, 2009

The Second Circuit held that applicable conservation regulations did not apply to the regular use of lead shot on a shooting range. The court also ruled that plaintiffs did not create a material issue of fact regarding whether lead contamination on a shooting range constituted an imminent and substantial endangerment to health or the environment. The court found that the plaintiffs did not prove the gun club in question was discharging lead shot into “navigable waters” from a “point source.”

U.S. Chamber files amicus brief challenging Supreme Court decision

August 07, 2007

NCLC filed a brief arguing that the Supreme Court’s holding in Rapanos v. United States did not allow for federal regulation of wetlands, which had a “speculative or insubstantial” connection with traditional navigable waters. In the Rapanos case, a four-justice plurality, led by Justice Scalia, determined that only wetlands inseparable with traditional navigable waters could be subject to federal jurisdiction under the Clean Water Act. Justice Kennedy, in a concurring opinion, relied on earlier Supreme Court precedent and remanded to the lower court to apply a “significant nexus” test. In its brief, NCLC argued that Justice Steven’s dissenting opinion in Rapanos (filed on behalf of four dissenting Justices) was irrelevant to any effort to discern the Supreme Court’s Rapanos holding and that the wetlands in this case did not bear a substantial relationship to traditional navigable waters.

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