Federal Jurisprudence—The First Circuit Construes Plurality Opinions to Expand the Reach of the Clean Water Act—United States v. Johnson, 467 F.3d 56 (1st Cir. 2006), cert. denied, 128 S. Ct. 375 (2007)

First Circuit Review 2008

The Clean Water Act (CWA) extends federal protection to “navigable waters,” which it broadly defines as “the waters of the United States, including territorial seas.”  In Rapanos v. United States, the Supreme Court attempted to define the standard for determining the CWA’s reach over wetlands but, unable to reach a majority opinion, issued a fragmented plurality decision setting forth conflicting legal standards.  To identify Rapanos’s controlling legal standard, some courts invoke the narrowest ground formula while others adopt Justice Stevens’s instructions set forth in his Rapanos dissent.  In United States v. Johnson, the First Circuit Court of Appeals considered which of these formulas it should invoke in construing Rapanos.  The First Circuit adopted Justice Stevens’s instructions and directed lower courts to find CWA jurisdiction over wetlands that satisfy either standard set forth in Rapanos. . . .