Environmental – Clean Water Act – Jury Instructions – ‘Water of the United States’ – Rapanos v. United States – Justice Kennedy’s Definition

Environmental – Clean Water Act – Jury Instructions – ‘Water of the United States’ – Rapanos v. United States – Justice Kennedy’s Definition (access required)

United States v. Freedman Farms, Inc. In unusual situations, Justice Scalia's definition of "waters of the United States," as set out in the plurality opinion of Rapanos v. United States, 547 U.S. 715 (2006), would give the government authority over bodies of water that would not fall within Justice Kennedy's definition, set out in his concurring opinion. However, Justice Kennedy's definition generally would be less restrictive of government authority (i.e., "narrower" within the meaning of Marks v. United States, 430 U.S. 188 (1977)).

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