"Significant Nexus" to "Navigable Waters" Necessary in Clean Water Prosecutions
Abraham Lincoln, following the Union victory at Vicksburg, referred to the Mississippi again flowing “unvexed to the sea.” In Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208 (2006), the United States Supreme Court, in a plurality opinion authored by Justice Scalia, elaborated the definition of “navigable waters” under the Clean Water Act (CWA), which is defined under 33 U.S.C. § 1362, as “the waters of the United States, including the territorial seas,” as “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features' that are described in ordinary parlance as ‘streams... oceans, rivers, [and] lakes,’” id. at 2225. The plurality further held that “navigable waters” are “continuously present, fixed bodies of water, as opposed to ordinarily dry channels th1rough which water occasionally or intermittently flows.” Id. at 2221.
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