Real  estate  developers  and  financiers  are  often  frustrated by their counsel’s or consultant’s hesitance  to provide an opinion as to whether an “isolated” or  “remote” wetland is federally protected, and, in the  past  year,  giving  such  an  opinion  has  become  even  more challenging. Last year, in Rapanos v. United States,  126  S.  Ct.  2208  (2006),  a  divided  Supreme  Court  articulated essentially two legal standards governing  whether a wetland is federally protected. Since then, a  number of federal courts have struggled with applying  those two standards, and the federal government has  delayed releasing guidance reconciling them.

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