Rapanos v. United States 547 U.S._______ (2006)

A brief discussion is below, and the Kennedy opinion is attached, too.

Not a CEQA case, yet of interest. Justice Kennedy’s decision is thought to control, as there was no single rational explaining the Court’s decision, his provided the most narrow interpretation.  His decision would have judges decide jurisdiction on a case-by-case basis by determining whether the wetland or water body in question has a “significant nexus with navigable waters.”

California Impact – not huge; in 2004, SWRCB issued draft order requiring waste discharge requirements for fills of isolated wetlands pursuant to their independent authority under the state’s Porter-Cologne Act.  This order is limited to small discharged, but State Board staff is working on a broader policy document that will establish an overall wetlands policy based on similar regulatory theory.  If the Corps does not take jurisdiction, waste discharge requirements will be issued by the RWQCB under Porter-Cologne.

Article by Robert J. Uram, Esq. about this case.