Miller Starr Regalia

For the past twenty years, the United States Supreme Court has struggled with the scope of the federal Clean Water Act’s wetlands regulatory scheme. This summer, the Court again considered the scope of the Section 404 permit program - delving into the question whether federal jurisdiction extended to wetlands not adjacent to a traditionally navigable water. The two consolidated cases - Rapanos v. United States and Carabell v. United States Army Corps of Engineers invited the Supreme Court to restrict the reach of the Clean Water Act. The Court collectively declined the invitation. Not only did the Court decline to limit the scope of the Act, in a set of five truly distinct opinions, the fractured Court departed from its usual practice and sent both cases back to the Sixth Circuit without providing any clear rule for the lower court to apply.2 While certain basic guidance can be gleaned from the split decision, as a practical matter, the decision means that potential dischargers, federal regulators, and courts throughout the country are left to wade through Section 404’s murky waters without clear guidance until such time as Congress, or an administrative rule making, intervenes.

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