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SCOTUS Issues Decision on Rapanos/Caraball Wetlands Case

The decision is in on the highly-anticipated Rapanos and Carabell consolidated wetlands cases, and the Supreme Court has rejected the Feds' overly expansive definition of a "wetland" under the Clean Water Act. SCOTUSblog reports:

A pluarlity of the Supreme Court concluded on Monday that the Clean Water Act's protection of "waters of the United States" is limited to those bodies of water that are "permanent, standing or continously flowing," and thus does not embrace channels through which water flows only some of the time. And, the Court added, "navigable waters" under the Act ordinarily is no broader than U.S. waters. The decision appeared to rule out protection against filling-in or pollution of wetlands not part of actual waterways. The actual impact of the plurality opinion by Justice Antonin Scalia appears to have been qualified somewhat by a lengthy concurrence by Justice Anthony M. Kennedy, who supplied a fifth vote for the result. After Scalia announced his opinion, Kennedy discussed his separate views.

The AP article is here .

The opinions are posted here. Here's a key bit from Scalia's opinion:

In sum, on its only plausible interpretation, the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] ... oceans, rivers, [and] lakes." See Webster's Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps' expansive interpretation of the "the waters of the United States" is thus not "based on a permissible construction of the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984) .

From the syllabus:

A wetland may not be considered "adjacent to" remote "waters of the United States" based on a mere hydrologic connection. [...] Thus, only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between the two, are "adjacent" to such waters and covered by the Act.

More updates to come.

Leonard Gilroy is Director of Government Reform


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