February 6, 2007
Perhaps the distinction between the plurality opinion and Justice Kennedy's concurrence in Rapanos may not matter:
Simsbury-Avon Preservation Soc., LLC v. Metacon Gun Club, Inc., (D.Conn.) In deciding whether a pond located on a gun club's property constituted "navigable waters" of the United States under the Clean Water Act (CWA), a district court considered both the test established by the plurality in Rapanos v. U.S., and the test established by Justice Kennedy's concurrence in that case. The pond did not constitute "navigable waters" under the plurality's test, since any surface connection between the pond and a river was not continuous. Nor did it constitute "navigable waters" under Justice Kennedy's test, since data from testing was inconclusive as to the effect of lead from the shooting range on the river.
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