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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