392 F.Supp. 685 (D.D.C. 1975), Civ. A. 74-1242, Natural Resources Defense Council, Inc. v. Callaway

Docket Nº:Civ. A. 74-1242
Citation:392 F.Supp. 685
Party Name:Natural Resources Defense Council, Inc. v. Callaway
Case Date:March 27, 1975
Court:United States District Courts, District of Columbia
 
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Page 685

392 F.Supp. 685 (D.D.C. 1975)

NATURAL RESOURCES DEFENSE COUNCIL, INC., and National Wildlife Federation, Plaintiffs,

v.

Howard H. CALLAWAY, Secretary of the Army, et al., Defendants.

Civ. A. No. 74-1242.

United States District Court, District of Columbia.

March 27, 1975

Marianne K. Smythe, Dennis M. Flannery, William T. Lake, Wilmer, Cutler & Pickering, Washington, D.C., for plaintiffs.

John E. Varnum, Pollution Control Section, Dept. of Justice, Brian O'Neill, Gen. Counsel's Office, Army Corp. of Engineers, Washington, D.C., David Gluckman, Sp. Asst. Atty. Gen., Florida Dept. of Pollution Control, Robert L. Shevin, Atty. Gen. for the State of Florida, for defendants.

Page 686

DECLARATION AND ORDER OF FINAL JUDGMENT

AUBREY E. ROBINSON, Jr., District Judge.

Plaintiffs have moved for an order pursuant to Rule 56 of the Federal Rules of Civil Procedure granting partial summary judgment in favor of Plaintiffs on Count I of the Complaint; and Defendants' having moved to dismiss the complaint on all counts; and the Court having heard argument of counsel, the Motion for Partial Summary Judgment on Count I of the Complaint is granted; and it is DECLARED that:

1. Congress by defining the term 'navigable waters' in Section 502(7) of the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C. § 1251 et seq. (the 'Water Act') to mean 'the waters of the United States, including the territorial seas,' asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution. Accordingly, as used in the Water Act, the term is not limited to the traditional tests of navigability.

2. Defendants Howard H. Callaway, Secretary of the Army, and Lt. Gen. William C. Gribble, Chief, Army Corps of Engineers, are without authority to amend or change the statutory definition of navigable waters and they are hereby declared to have acted unlawfully and in derogation of their responsibilities under Section 404 of the Water Act by the adoption of the definition of navigability described at 33 C.F.R. § 209.210(d)(1), 39...

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