Navigating the Current of Federal Wetlands Cases
By Tom Mounteer, Noah Perch-Ahern and Jennifer Shea
Real estate developers and financiers are often frustrated by their counsels or consultants hesitance to provide an opinion as to whether an isolated or remote wetland is federally protected, and, in the past year, giving such an opinion has become even more challenging. Last year, in Rapanos v. United States, 126 S. Ct. 2208 (2006), a divided Supreme Court articulated essentially two legal standards governing whether a wetland is federally protected. Since then, a number of federal courts have struggled with applying those two standards, and the federal government has delayed releasing guidance reconciling them.