A majority in Rapanos (2006) couldn’t agree on how to limit EPA’s authority over wetlands. Four Justices said the Clean Water Act’s scope extended to “only those relatively permanent, standing or continuously flowing bodies of water” such as oceans, rivers and lakes, and wetlands that were directly adjacent and “indistinguishable” from those waters.
However, the agencies and lower courts have adopted Justice Anthony Kennedy’s lone opinion that federal jurisdiction extends to land that has a “significant nexus” to a waterway. This test is as clear as a swamp.
While all nine Justices ruled for the Sacketts, they disagreed on the scope of federal power. The majority strips away the “significant nexus” ambiguity from Justice Kennedy’s Rapanos opinion, but reaffirms the conservative plurality’s view that a “wetland” must “be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.”
Ronald Reagan's worst appointment.
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