March 10, 2007
Rapanos Redux: reading the tea leaves
On March 8, 2007, the US Supreme Court denied cert in Morrison v. US, in which the 6th Circuit held that certain island property in Michigan was within CWA regulatory jurisdiction. The wetlands were adjacent to a navigable water, which established the significant nexus between wetlands and navigable waters required for the Act to apply. The 6th Circuit decision was issued prior to Rapanos v. U.S., 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). Petitioner argued that Rapanos reversed the Sixth Circuit's determination that CWA jurisdiction extends to any wetland that bears a mere hydrological connection to a traditional navigable waterway. Petitioner argued that under Marks v. U.S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the Rapanos plurality opinion authored by Justice Scalia was controlling because its rationale was a logical subset of Justice Kennedy's concurrence. The US argued that the United States has regulatory jurisdiction over any wetland satisfying either the plurality standard or Justice Kennedy's standard. The US argument was based on the statement by four dissenting Justices in Rapanos that they would sustain the exercise of federal regulatory jurisdiction under the CWA whenever either standard is satisfied.
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