Dipping Alito in the Water

Clean-water cases go before Supreme Court

The Supreme Court will hear two cases with immense consequences for federal clean-water protections this week. Both were brought by Michigan developers who were unable to build on parcels of land when they were denied Clean Water Act permits. The legal challenges amount to a frontal attack on the scope of the CWA; if successful, more than half the streams and wetlands now covered under the CWA could lose federal protection. At issue is the definition of "navigable waters," which the CWA puts under federal jurisdiction. In issuing regulations, the U.S. EPA and Army Corps of Engineers have interpreted the term broadly, to cover even upstream waters with no hydrologic connection to navigable streams and rivers. Such regulations have been vital to improvements in water quality in recent decades, and even the Bush administration supports the EPA's expansive interpretation. Developers and property-rights groups have long worked to narrow the law's scope. Court watchers are particularly interested in these cases, as they are the first environmental ones to come before the recently realigned Roberts/Alito court.