Antonin Scalia

Navigable Soil

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The details are confusing—especially since I haven't actually read the opinions—but this morning the Supreme Court issued a ruling on the difference between "navigable waters" and unnavigable wetlands:

A plurality 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 ruling came in the consolidated cases of Rapanos v. U.S. and Carabell v. Army Corps of Engineers. The Reason Foundation's Shikha Dalmia looked at Rapanos last October.

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  1. So, it’s settled. The streets of New Orleans are not navigable waters.

  2. Does this mean that the Feds have no authority over “interstate commerce” that occurs in an unnavigatable wetland.

    If so, I may have to turn my backyard into a swamp.

  3. This appears to be the only decent ruling that could have been made in this case — from a Court that’s issued some pretty indecent rulings of late.

    But it is a relatively narrow ruling in the sense that it is simply setting a limit on the scope of Federal authority to enforce wetlands regulation. State and local gov’ts are still welcome to do so.

  4. On another topic…can we do something about that thoroughly scary, wide-eyed pic of ann coulter that keeps popping up on the ad section? I don’t want that close a view a the C-word…well…ever.

    I understand free markets and all but it makes me NOT want to come here.

    And this has little to do with my personal distaste for the woman….the ad is just plain unpleasant on the eyes. In that respect, I guess, it’s a miracle of modern marketing. That Diary of a Rat has achieved something so remarkable…well it’s like Nicholas Cage said about the VX2 gas in The Rock.

    “It’s the kind of stuff we wish we could uninvent.”

  5. I thought that seasonal wetlands, drainage ditches, and the like fell under the scope of the federal wetlands act because polluting or filling them would effect actual navigable waterways, not because they themselves were considered navigable waterways.

  6. madpad:
    Use Firefox and download the extension Adblock. You can block the image. No more scary Coulter, no more carpet humping guy and possibly if you chose no more Reason Pillow Girl. Not sure why you would chose to block the last though.

  7. I thought that seasonal wetlands, drainage ditches, and the like fell under the scope of the federal wetlands act because polluting or filling them would effect actual navigable waterways, not because they themselves were considered navigable waterways.

    yup and that is why we have a supreme court case…the law gives specific regulatory bounds “navigatbale waters” the greenies want bigger bounds “water that goes into navagatible waters” thus endless court battle ensues.

    Oh. oh wait. i get it joe, you are actually saying that unless the government regulates then the enviornment will be harmed…yeah becouse as everyone knows the US government has done such a wonderful job protecting the habitat and enviornment of the lands it owns…

    Bwuahahahahahahahahah!

  8. I thought that seasonal wetlands, drainage ditches, and the like fell under the scope of the federal wetlands act because polluting or filling them would effect actual navigable waterways, not because they themselves were considered navigable waterways.

    That’s the rub, isn’t it?

    Doesn’t every drop of water and every mud puddle with fairy shrimp in this great land of ours eventually flow into a naviagable waterway?

    If Congress wanted to give Army Corps juristiction over every mud puddle in the United States that might eventually flow into a naviagable waterway, then they should have written the Clean Water Act to do that. …I don’t think that’s what they were goin’ for, do you?

  9. So much for the Santa Ana “River”

  10. zero,

    thanks…and I would NOT choose to block the Reason Pillow Girl…unless, of course (and you knew this was coming) they somehow got A.C. to pose.

    Then, I’m afraid, drastic measures would be called for.

  11. Bring back the RPG!!! (I don’t think I ever saw that one, but it sounds like it was a nice ad…) 🙂

  12. So here’s my question, Jessee: why write such a long, boring piece about an event that from the start you admit is a non-story?

  13. Ken, joshua,

    Then the blurb from Scotusblog is misleading – it states that the SCOTUS ruled that drainage ditches are not navigable wetlands, when in fact they were never held of be navigable wetlands.

  14. joe,

    …when in fact they were never held of be navigable wetlands.

    At one time they were by the circuits.

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