Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975)

*686 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.

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 Federal Register 12119 (April 3, 1974) and 33 C.F.R. 209.260; and it is ordered that Defendants Callaway and Gribble:

1. Revoke and rescind so much of 39 Federal Register 12115, et seq. (April 3, 1974) as limits the permit jurisdiction of the Corps of Engineers by definition or otherwise to other than "the waters of the United States."

2. Publish within fifteen (15) days of the date of this Order proposed regulations clearly recognizing the full regulatory mandate of the Water Act.

3. Publish within thirty (30) days of the date of this Order final regulations clearly recognizing the full regulatory mandate of the Water Act; and it is

Further ordered that the Clerk of this Court shall enter a final Judgment upon this Order Granting Plaintiffs' Motion for Partial Summary Judgment, the Court expressly having determined that there is no just reason for delay in the entry of final Judgment on this Order; and it is

Further ordered that Defendants' Motion to Dismiss be and hereby is denied.