Supreme Court Offers No Clear Guidance in Wetlands Decision
Anyone hoping for a bright line rule from the U.S. Supreme Court on exactly when filling or dredging a wetland requires a federal Clean Water Act permit because it is “adjacent” to “navigable waters” probably was disappointed on June 19 when the Court issued five separate opinions, none with a majority. In the consolidated cases of Rapanos v. U.S. and Carabell v. Army Corps of Engineers, a bare majority voted to send both cases back to the lower court for further consideration, but no opinion had enough votes to give any clear guidance on what rule to apply or how. The result is that arguably marginal wetlands are still subject to regulation for now, but it also is likely that the U.S. Army Corps of Engineers will revisit its long-shelved revision of the rules to carve out some wetlands that might fall within the scope of the current application of the “adjacent to navigable waters” definition. View full article (PDF).