U.S. Supreme Court Review of Rapanos v. United States and Carabell v. United States Army Corps of Engineers: Implications for Wetlands and Interstate Commerce

摘要

The exact contours of wetlands jurisdiction has been in dispute ever since the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Today, the Court has been given the chance to clarify this area of law as it faces two cases dealing with wetlands jurisdiction. In Rapanos v. United States, the Court must decide whether CWA jurisdiction extends to a series of wetlands that do not abut a nav-igable-in-fact water. And in Carabell v. U.S. Army Corps of Engineers, the issue is whether CWA jurisdiction can extend from a navigable-in-fact water over a man-made berm to an adjacent wetlands when there is no demonstrated hydrologic connection between the two waters. In both cases, if the answer is yes, the Court must also decide whether Congress has the authority to extend federal jurisdiction to such waters under the Commerce Clause. In this Article, Prof. William Want examines these two cases in light of the CWA and Court precedent, and expresses his view on how these cases should be resolved.