The December 2006 Washington Watch column in BioScience considers the implications of a recent U.S. Supreme Court ruling on the ability of the federal government to regulate wetlands. This and previous Washington Watch articles may be read for free online at http://www.aibs.org/washington-watch/.
The following is a brief excerpt from the December article.
In early 2006, more than 50 briefs were submitted to the Supreme Court in connection with two cases challenging the federal government's authority to regulate streams and wetlands under the Clean Water Act (CWA). At issue in Rapanos v. United States and Carabell v. Army Corps of Engineers was whether the CWA prohibition on unpermitted discharges into navigable waters extended to nonnavigable wetlands. In both cases, the petitioners had sought to deposit fill material in wetlands in preparation for development projects.
On 19 June 2006, the Supreme Court issued its much-anticipated ruling (www.supremecourtus.gov/opinions/05pdf/04-1034.pdf). Justice Scalia announced the Court's decision to remand the cases to lower courts and wrote an opinion in which Justices Roberts, Thomas, and Alito joined; Justice Kennedy filed an opinion concurring in the judgment; Justices Stevens, Souter, Ginsburg, and Breyer dissented. The 4-1-4 plurality decision might better be described as an "indecision," however: The Court failed to achieve a majority position on the broader question of whether the United States has the authority to regulate streams and wetlands under the CWA.
The ruling initially appeared to be a defeat for supporters of the CWA.
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