ELR Citation: ELR 20218
No(s). 05-1444 (1st Cir. Oct 31, 2006)

The court remanded the U.S. government’s Clean Water Act suit against a group of cranberry farmers in Carver, Massachusetts, in light of the U.S. Supreme Court's decision in Rapanos v. United States, 126 S. Ct. 2208, 36 ELR 20116 (2006). Prior to Rapanos, the court had upheld jurisdiction over the wetlands at issue in this case, which had been filled without permits by the farmers to create a cranberry bog. In reconsidering its previous decision in light of Rapanos, the court ruled that the government can establish jurisdiction over the wetlands in question if they meet either the plurality’s literal interpretation of the term “navigable waters,” meaning permanent flowing or standing bodies of water and hydrologically connected neighboring wetlands, or Justice Kennedy’s “substantial nexus” standard. The court thus vacated its earlier decision, 437 F.3d 157, 36 ELR 20040 (1st Cir. 2006), and remanded the case to the district court for any additional fact-finding necessary to address the jurisdictional question.

[A prior decision in this litigation is digested at 36 ELR 20040.]