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The Float a Boat Test: How to Use It to Advantage in This Post-<i>Rapanos<d> World

July 2008

Citation: ELR 10439

Author: William W. Sapp, Rebekah Robinson, and M. Allison Burdette

Editors' Summary: Since the Supreme Court's decision in Rapanos v. United States, courts, practitioners, and scholars have continued to discuss Justice Anthony M. Kennedy's significant nexus test. Under this test, to protect a wetland one must establish that there is a significant nexus between the wetland and a traditional navigable water. In this Article, authors William W. Sapp, Rebekah Robinson, and M. Allison Burdette suggest that the nearer a traditional navigable water is to the wetland, the better the chance of establishing that there is a significant nexus between the two. The authors then argue that it is in the interests of those protecting the wetland to close the gap between the wetland and the nearest traditional navigable water by showing that canoes and kayaks can navigate any creeks or small rivers close to the wetland.

William W. Sapp is a Senior Attorney with the Southern Environmental Law Center. Rebekah A. Robinson graduated from Tulane Law School in 2008 with a certificate in Environmental Law. M. Allison Burdette is an Assistant Professor in the Practice of Business Law at Emory University's Goizueta Business School. The authors thank Patsy Burdette, Michael Creswell, Donna Downing, Peggy Livingston, Jim Murphy, Stephen Samuels, and Lance Wood for their help with this Article, though the thoughts expressed in this Article are solely those of the authors.

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