Builders, Conservatives Urge High Court To Narrow CWA

Law360: "In another amici brief filed Thursday, the Atlantic Legal Foundation, Conservatives for Property Rights and Committee for Justice echoed the Sacketts' argument that Scalia's test should hold sway, not Kennedy's.

'The court should definitively adopt the Rapanos plurality's surface connection (i.e., physical connection) test as a necessary condition for establishing Clean Water Act jurisdiction over wetlands,' the groups said. 'The canon of constitutional avoidance requires rejection of the significant nexus test because, unlike the surface connection test, it often will raise serious, case-by-case Fifth Amendment takings issues.'

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The Atlantic Legal Foundation, Conservatives for Property Rights and Committee for Justice are represented by Lawrence S. Ebner of the Atlantic Legal Foundation, and Nancie G. Marzulla of Marzulla Law LLC."

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