Wetlands After Rapanos

September 2006Newsletters In The Zone

As seen in the September 2006 In The Zone newsletter.

In the well publicized decision of Rapanos v. United States, the Supreme Court created great confusion regarding what areas can be called “wetlands” and what will fall under the jurisdiction of the Clean Water Act.

The confusion is caused largely because a majority of the court did not agree. Justice Antonin Scalia, joined by three other justices, wrote the primary opinion. However, a majority was only created when Justice Anthony Kennedy wrote a concurring opinion. Accordingly, the “Kennedy Opinion” is being viewed by many observers as the guidance for future wetland decisions.