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30 St. & Loc. L. News 1 (2006-2007)

handle is hein.journals/stlolane14 and id is 1 raw text is: AA Section of State and Local Government Law The Section serves as a collegialforum for its members, the profession, and the public asprovide leadership and educational resources in urban, state, and localgovernment law and poticy. The Supreme Court Muddies the Waters in Rapanos By Edward B. Witte P roperty owners, developers, environmental advocates, and government regulators were watching closely this summer as the U.S. Supreme Court prepared its signif- icant decision in the case of Rapanos v. United States (Ra- panos), 126 S. Ct. 2208 (2006). Representing the culmina- tion of twenty years of regulatory disputes, the case held the promise of resolving substantial differences of opinion across the country regarding the reach of federal jurisdic- tion over certain isolated wetlands On one side, property owners and developers blamed the federal government and the U.S. Army Corps of Engineers (Corps) for interfering with private property rights by claiming jurisdiction over every puddle on every property. From the opposite perspective, the Corps asserted that its exercise of regulatory discretion complied with its legisla- tive directive to protect the waters of the United States, Much to nearly everyone's surprise, the Supreme Court effectively entered a no decisionin the Rapanos case and in its companion case, Carabell v. United States Army Corps of Engineers. The Court split 4-1-4, with Justices Scalia, Thomas, Alito, and Chief Justice Roberts writing the Court's plurality (lead) opinion, Justice Kennedy writing the concurring opinion (by which the decision will be re- membered), and Justices Breyer, Souter, Ginsburg, and Stevens penning the dissenting opinion Rapanos did not resolve the jurisdictional dispute; in- stead, it confirmed the vitaliV of the dlpt, tr k Edliird B. Wit& e,0dr W4tk k Milwaukee, WiiconsWtfiwm vf Gonzalez, Saggio & Maran, LLP . case-by-case, for years to come. As discussed in greater de- tail herein, the Supreme Court manufactured a technical, scientific standard for when an isolated wetland is suffi- ciently connected to other regulated surface water to justify federal jurisdiction. Environmental lawyers and consulting wetland scientists can celebrate this outcome, but landown- ers and government regulators had hoped for more. B &kgrund on Rpw n the ederd Weiands Pr r n At issue in Rapanos was the extent to which the federal gov- ernment, acting through the Corps, could include wetlands with limited hydrologic connection to other, more tradi- tional waters of the United State, under the Clean Water Act's (CWA) section 404 permitting program. continued on page 15 Chairs Message, page 2 Section News -Condemnation Committee, page 3 -Jefferson Fordham Award Winners, page 3 -Enviromnental Law Committee, page 4 Recent Developments -Valuation Methods Combined for Leased Property, page 6 -Fit and Smoke-Free: New Conditions of Employment, page 8 -Post-Kelo Legislation in Minnesota and Wisconsin, page 9 -Communication Disruption by Hurricanes, page 10 Supreme Court Watch, page 13 Vol. 30, No. 1, Fall 2006

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