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"No Comment" on Deep Ripping: Wetlands and the Clean Water Act After <i>Borden Ranch</i>

January 2004

Citation: ELR 10028

Author: Robin Kundis Craig

In December 16, 2002, the U.S. Supreme Court issued a per curiam opinion in the case of Borden Ranch v. U.S. Army Corps of Engineers, affirming the U.S. Court of Appeals for the Ninth Circuit's decision that "deep ripping" of wetlands requires a permit from the U.S. Army Corps of Engineers (the Corps) pursuant to §404 of the Clean Water Act (CWA). However, the Court's opinion did little to elucidate the parameters of CWA jurisdiction over wetlands activities: the Justices split 4 to 4, and their "opinion" consisted of two sentences:

The judgment is affirmed by an equally divided Court. Justice [Anthony M.] Kennedy took no part in the consideration of decision of this case.

This Article reviews the status of "discharges of dredged material" under §404 of the CWA in light of the Court's "no comment" opinion in Borden Ranch.

The author is an Associate Professor of Law, Indiana University School of Law at Indianapolis. She received her J.D. 1996, Lewis & Clark School of Law; Ph.D. 1993, the University of California; M.A. 1986, The Johns Hopkins University; B.A. 1985, Pomona College. The author may be reached by e-mail at robcraig@iupui.edu.

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