Supreme Court Docket Report – 2005 Term, No. 2

By Tim Bishop and David Gossett

Originally published October 11, 2005

Today the Supreme Court granted certiorari in four cases of interest to the business community, two of which it consolidated. Amicus briefs in support of the petitioners will be due on November 25, 2005, and amicus briefs in support of the respondents will be due on December 30, 2005.

1. Clean Water Act—Federal Jurisdiction Over "Adjacent" Wetlands.

The Clean Water Act prohibits "additions" of pollutants and fill material without a permit into "navigable waters" (33 U.S.C. §§ 1311(a), 1344(a)), which the Act defines as the "waters of the United States" (id. § 1362(7))—which in turn federal regulations delineate as including "wetlands adjacent to" navigable waters or their tributaries. 33 C.F.R. §§ 328.3(a)(1), (5), (7); 40 C.F.R. §§ 230.3(s)(1), (5), (7). The Supreme Court granted certiorari in Rapanos v. United States, No. 04-1034, and Carabell v. United States Army Corps of Engineers, No. 04-1384, to clarify