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Decisions: Clean Water Act reach limited

UPDATE 11:05 a.m.

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 by a lengthy concurrence by Justice Anthony M. Kennedy, who supplied a fifth vote for the result. Kennedy’s opinion, it appears, will be the controlling one. After Scalia announced his opinion, Kennedy discussed his separate views.

The vote on the result was 5-4. Justice John Paul Stevens, who authored the dissenting opinion, also spoke from the bench about the dissenters’ views.

The opinions came in the consolidated cases of Rapanos v. U.S. (04-1034) and Carabell v. Army Corps of Engineers (04-1384). The Rapanos case involved Michigan wetlands that lie near ditches or man-made rains that eventually empty into navigable waters. The Carabell case involved wetlands that are physically separated from navigable water, by means of man-made barriers such as an earthen berm, and seldom send water to a navigable stream.

Both cases were returned to lower courts for further action. Justice Stevens, in his dissent, noted that lower courts will have some difficulty deciding how to follow both the Scalia plurality opinion and Kennedy’s separate concurrence. (The opinion, concurrences, and dissents are all available here.)

In the second of three rulings on argued cases, the Court took two differing positions on whether statements that amount to “excited utterances,” made out of court, may be admitted as evidence in a trial, under the 2004 decision in Crawford v. Washington. The Court allowed as evidence the recording of a “911” call, finding that was not “testimonial.” But it ruled that a statement made by a victim to a police officer at a crime scene was “testimonial” and could not be admitted at trial. Out of court statements that are deemed to be “testimonial” may not be admitted when the person who made the statements is not available to be cross-examined at the trial. (Justice Scalia’s opinion is available here; Justice Thomas’s concurring opinion is available here.) The cases are Davis v. Washington (05-5224) and Hammon v. Indiana (05-5705).

In the third decision of the day, in Samson v. California (04-9728), the Court decided that the Fourth Amendment does not prohibit a police officer from searching a parolee, even without a warrant. (The opinion and dissent are available here.) The Court, in an opinion written by Justice Clarence Thomas, relied heavily upon a 2001 precedent, U.S. v. Knights, allowing a warrantless search of the apartment of a probationer. Parolees, Thomas wrote, have fewer expectations of privacy than probationers. The ruling was by a vote of 6-3.

The Court will issue more opinions in argued cases on Thursday. The Court expects to issue 15 more decisions before recessing for the summer.