Textualism and Waters of the United States

On New Year’s Eve, EPA and the Army Corps of Engineers released their latest effort to define “the waters of the United States,” a key phrase from the Clean Water Act. The rule comes close on the heels of oral argument in Sackett v. United States, which seems likely to be a landmark Clean-Water-Act and statutory-interpretation case. At the core of both the rulemaking and the case is a textual question: what does the phrase “the waters” actually mean?

Seventeen years ago, in his plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), Justice Scalia offered an answer to that question. He concluded that, as a matter of basic textualism, the phrase “the waters” excludes wetlands unless those wetlands blend with other aquatic features. The Sacketts made that conclusion a key premise of their briefing. But that position doesn’t make sense. This post explains why.

In offering that explanation, I’ll take basic tenets of textualist statutory interpretation as unquestioned premises. I’ll also leave aside the broader purposes of the Clean Water Act, even though, in this particular instance, true textualism would require attention to those purposes; they’re written right into the statute. Even with just that narrow set of interpretive methods, Justice Scalia’s conclusion does not follow—never did follow—from his own interpretive methods.

Let’s start with a basic common-sense understanding of the phrase. It seems fair enough to conclude, as Justice Scalia did, that the phrase “the waters” connotes geographic features. But there is no obvious reason why some geographic features, like streams, would be included, while others, like wetlands, would be left out. If someone tells you a parcel of land contains no waters, you’d probably expect to be able to walk across it without hip-waders. And if you did encounter a swamp, you probably would feel misled. You wouldn’t say, “well, of course, these aren’t really waters, because I don’t see a continuous connection to a river that could float a boat.”

Conventional usage also supports a broader construction of the phrase “the waters.” There are many examples of the phrase “swamp waters” arising in legal, scientific and mainstream parlance. States set water quality standards for “swamp waters.” Criminal cases discuss bodies pulled from “swamp waters.” State v. McDowell, 224 S.E.2d 889, 890 (1976).  The builders of the Erie Canal faced potential liability when their waterworks caused “the waters of [a] swamp” to flood a large area of land. Com. v. Reed, 34 Pa. 275 (1859). Indeed, the phrase “the waters of the swamp” arises repeatedly in nineteenth- and twentieth-century case law. E.g., Porter v. Armstrong, 39 S.E. 799, 799 (N.C. 1901). It’s been part of English-language parlance for a long time.

The question might seem more difficult with aquatic features like desert springs or streams. But here, too, there are long-established linguistic traditions. Of all the books set in desert landscapes, none is more famous (or more readily searchable) than the Bible. Exodus, Numbers, Psalms, and Joshua all use the phrase “the waters” to refer to springs. Some of these springs may have been tributary to waters we might classify as navigable-in-fact, but some were in the Sinai Peninsula, and thus were probably what we would refer to as isolated wetlands. Likewise, Judges 5:19 refers to “the waters of Meggido,” which people with more expertise in such matters think referred to springs in wadi in the West Bank.

Justice Scalia, in his Rapanos opinion, and Justice Rehnquist, in SWANCC v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), had a potential response to this; they argued that the definition should be narrowed by the defined term. “Waters of the United States,” the justices argued, should be given a narrow construction because it defines “navigable waters,” and Congress presumably wanted that narrow meaning to carry over despite its choice of broad definitional terms. But that’s not how Congress operated in this era. In the Resource Conservation and Recovery Act, for example, Congress defined the key term “solid waste” as including liquid and gaseous wastes. 42 U.S.C. § 6903(27). The Endangered Species Act defines “species” as including subspecies and distinct population segments. 16 U.S.C. § 1532(16). We know that Congresses of the 1970s, when drafting environmental laws, often started with conventional legal terms and then defined them in unconventionally expansive ways. This may be frustrating, but the task of statutory interpretation is to interpret Congress’s linguistic choices, not to scold them. And Congresses of this era clearly expected their definitions to define their terms, not the other way around.

- Dave Owen

There is more to the waters-of-the-United-States discussion than the words “the waters of the United States.” Statutory purposes and structure should also matter. My point here is that even if we just zero in on the five words that are most centrally at issue, a broad understanding of Clean Water Act coverage ought to follow.