Cert Denials in Rapanos follow-up cases

The U.S. Supreme Court chose not to review the appellate decisions in Gerke and Johnson, leaving in place a conflict between the Circuit Courts.  In Gerke the 7th Circuit determined that federal jurisdiction under the Clean Water Act must be  based on the "significant nexus" test proposed by  Justice  Kennedy in the Rapanos case.   In contrast, the 1st Circuit in Johnson held that jurisdiction  could be established based on either the Scalia test, limiting federal authority to relatively permanent rivers, lakes and streams (and indistinguishable wetlands), OR on the "significant nexus test.  Obviously, the High Court is not yet ready to revisit its split decision in Rapanos even to resolve a conflict in the courts over how to interpret that decision.  Whether the court will change its mind when other circuits have weighed in on the jurisdictional question remains to be seen, but the issue will not go away until the Supreme Court grants review.