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A Practitioner's Guide to Protecting Wetlands in a Post-<i>Rapanos</i> World

October 2006

Citation: ELR 10814

Author: Jim Farrell and Marie Quintin

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.

Jim Farrell is a third-year law student at the University of Mississippi School of Law and a 1999 graduate of the U.S. Naval Academy, where he received a B.S. in English. He served as a naval officer for five years prior to attending law school. Marie Quintin is a second-year law student at Pace University School of Law. Prior to law school, she received a B.A. in Anthropology from the University of North Carolina at Charlotte and completed graduate work in Natural Resources Sciences at the University of Rhode Island. She has worked as a wildlife biologist and consultant. Mr. Farrell and Ms. Quintin worked together as summer law clerks at the U.S. Environmental Protection Agency (EPA) in 2006. They would like to thank Mike Walker, Senior Enforcement Counsel for EPA's Office of Enforcement and Compliance Assurance, and their attorney mentors in the Legal Counsel and Resource Management Division, Jon D. Jacobs and James T. Morgan. Mr. Farrell may be contacted at james.r.farrell@gmail. com and Ms. Quintin at mquintin@aol.com.

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