- The Washington Times - Monday, February 20, 2006


Justice Samuel A. Alito Jr. will make his Supreme Court debut with a splash when the justices hear two cases that could determine the future of the Clean Water Act.

The cases, both from Michigan and scheduled for hearing today, could have an enormous impact. For property-rights advocates, an unfavorable ruling could spread the shadow of federal regulation across the country, stifling development.

Federal authority would extend to “virtually every body of water in the nation — every brook and pond, every dry wash — that has any connection with navigable waters, no matter how remote,” warned a coalition of water suppliers, farmers and the states of Alaska and Utah in one of more than 50 briefs filed with the court.

For environmentalists, a loss would strike at the heart of the nation’s water resources.

Federal agencies would be powerless to prevent “the discharge of sewage, toxic pollutants and fill into … the large majority of our nation’s rivers, streams and other waters,” said clean-water agencies from two-thirds of the states.

The two lawsuits challenge the federal government’s power to prevent landowners from filling and developing wetlands — marshes, ponds, drainage ditches or small streams — that have some connection with a distant river or lake.

Lower courts ruled in both cases that the Clean Water Act of 1972, which allows federal agencies to prevent pollution of navigable waters, regulates the filling of small wetlands that influence larger waterways, even those many miles away.

Property-rights groups argue that “navigable waters” must be interpreted to mean only rivers, streams and lakes that can be navigated by boat, or adjacent wetlands that significantly affect navigation or commerce on the larger waterways.

The cases return the court to an issue it left unanswered in 2001, when it ruled 5-4 that the Clean Water Act did not give the government authority over wetlands that were used by migratory birds but were isolated from navigable rivers and lakes.

The wetlands in the Michigan cases belong to a larger category of waters that are “hydrologically” connected to navigable waterways — that is, they are part of the same water system.

The two cases, which will be heard together, are the first on the Supreme Court calendar for Justice Alito, a veteran federal appeals court judge who won Senate confirmation last month to succeed the retiring Justice Sandra Day O’Connor. They also will be the first environmental cases for Chief Justice John G. Roberts Jr., President Bush’s other appointee, who was seated in October.

Conservation groups opposed both nominations, largely because of past rulings by the justices that appeared to take a narrow view of Congress’ power to regulate interstate commerce, the constitutional underpinning of federal environmental laws.

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