A Practitioner's Guide to Protecting Wetlands in a Post-<i>Rapanos</i> World
October 2006
Citation:
36
ELR 10814
Issue
10
Editors' Summary: The recent U.S. Supreme Court decision in Rapanos v. United States failed to clarify the murky area of federal jurisdiction under the CWA. Justice Scalia's plurality opinion, requiring a restrictive approach, and Justice Kennedy's concurrence, setting forth a "significant nexus" standard, created two different routes of jurisdictional analysis. In this Article, Jim Farrell and Marie Quintin first discuss how to interpret a plurality opinion. They then focus on Justice Kennedy's significant nexus test and outline a step-by-step process as well as factors to consider when determining whether a significant nexus exists.