'No Comment' on Deep Ripping: Wetlands and the Clean Water Act after Borden Ranch

In December 2002, the U.S. Supreme Court affirmed, per curiam, the Ninth Circuit's decision that "deep ripping" of wetlands requires a permit from the Army Corps of Engineers. However, because the Court was equally divided and issued no analysis, the reasons why "deep ripping" might be subject to Clean Water Act regulation remain obscure. This paper argues that the facts found by the district court support Clean Water Act jurisdiction despite the rather unusual analysis in the Ninth Circuit.