For anyone hoping for clear direction from the U.S. Supreme Court on the question of the extent of federal jurisdiction over adjacent wetlands, the court’s recent decision in the consolidated cases, Rapanos v. United States, 04-1034, and Carabell v. U.S. Army Corps of Engineers, 04-1384, is a disappointment. Unable to muster a majority opinion, the court split 4-1-4, divided equally between Justice Antonin Scalia’s plurality and Justice John Paul Stevens’ dissent, with Justice Anthony Kennedy taking retiring Justice Sandra Day O’Connor’s traditional centrist role on the court.
The issue was whether wetlands adjacent to non-navigable tributaries were “waters of the United States” under the Clean Water Act, and therefore subject to jurisdiction of the Army Corps of Engineers. While the plurality would have significantly curtailed federal jurisdiction, the dissent favored maintaining the status quo.
