Plain Meaning, Precedent, and Metaphysics: Interpreting the 'Navigble Waters' Element of the Clean Water Act Offense

Date01 June 2015
Plain Meaning,
Precedent, and
the “Navigble
Waters” Element
of the Clean
Water Act
by Jerey G. Miller
Jerey G. Miller is Professor of Law
Emeritus at Pace Law School.
is Article, the third in a series of ve, examines
the meaning of “navigable waters” under the Clean
Water Act. It traces the traditional judicial interpreta-
tion of navigable waters and how Congress and EPA
attempted to extend its meaning, then examines how
the term has been applied in the context of tributar-
ies and wetlands, isolated waters, groundwater, and
EPAs unitar y theory of navigable waters. e author
then analyzes EPA and the Corps’ 2014 proposed
amendments to the denition of “waters of the United
States,” and concludes that those amendments may
resolve much of the interpretive crisis.
I. Introduction
e Clean Water Act (CWA)1 in §301(a) prohibits “the dis-
charge of any pollutant by any person,”2 unless in compliance
with several listed sections authorizing the issuance of two
types of permits3 and specifying their substantive require-
ments. In §502(12), the statute denes “discharge of a pol-
lutant” to mean “any addition of any pollutant to navigable
waters from any point source.4 In sum, the subsection pro-
hibits (1)any addition (2)of any pollutant (3)to navigable
waters (4)from any point source (5)by any person, except in
compliance with a CWA permit. Justice Ruth Bader Gins-
burg has called this the CWA’s “core command.”5
is Article reviews the meaning of “navigable
waters”—a traditional Commerce Clause jurisdictional
phrase denoting waters associated with transportation, but
with a short CWA statutory denition having nothing to
do with waterborne transportation.6 e Article examines
the U.S. Environmental Protection Agency’s (EPA’s) 2014
proposed a mendments to its denition of “waters of the
United States” and concludes that those proposed a mend-
ments may resolve much of the interpretive crisis. e Arti-
cle also examines EPA’s theory that all navigable waters are
one (the unitary navig able waters theory), and argues that
the theory is inconsistent with the CWA and should be
disavowed by EPA and rejected by the courts.
In §502(6), the CWA denes navigable waters to mean
“the waters of the United States, including the territorial
seas.” Of all the elements in the CWA’s core command, only
“navigable waters” had a developed legal mea ning before
1. Clean Water Act (CWA), 33 U.S.C. §§1251-1387, ELR S. FWPCA
3. Permits issued pursuant to CWA §402, 33 U.S.C. §1342, regulate water
pollution; permits issued pursuant to CWA §404, 33 U.S.C. §404, 33
U.S.C. §1344, regulate lling streams or wetlands.
4. 33 U.S.C. §1362(12). Because the term dened in CWA §502(12), “dis-
charge of a pollutant,” is not exactly the same as the term used in CWA
§301(a), “the discharge of any pollutant,” the denition in §502(12) argu-
ably does not apply to the phrase used in §301(a). However, courts rou-
tinely refer to §502(12) as dening discharge of any pollutant in §301(a),
without noting the dierence. (Emphases added throughout.) See Jerey G.
Miller, 
    , 44 ELR 10770 n.4 (Sept. 2014)
[hereinafter Miller, ]. In any event, discharge itself is dened to in-
clude the discharge of a pollutant, §502(16), the term dened in §502(12).
5. Coeur Alaska Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261,
298 (2009). e author has called it elsewhere the basic prohibition of the
CWA. See J G. M  ., I  E
L: C  M  W P C 141 (2008).
6. 33 U.S.C. §1362(7). e touchstone of “navigable waters” for Commerce
Clause jurisdictional purposes is use in waterborne navigation. See e Dan-
iel Ball, 77 U.S. 557 (1870).
  
    
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
6-2015 NEWS & ANALYSIS 45 ELR 10549
enactment of t he statute. First, the U.S. Supreme Court
developed that lega l meaning in one dozen decisions over
the preceding century and a half, establishing the extent of
the U.S. Congress’ constitutional authority to develop and
regulate waterways under the Commerce Clause. Second,
the statutory denition of navigable waters, “the waters
of the United States,” attempts to broaden the element’s
meaning, while t he statutory denitions of the other ele-
ments narrow their meaning s. (For example, the statutory
denition of “pollutant” limits it to specically listed mate-
rials and categories of materials.7) ird, Congress devoted
substantial legislative history to the intended broad reach
of navigable waters, while providing far less legislative his-
tory to the meanings of the other elements.8
e courts’ historical familiarity with interpreting navi-
gable waters suggests they should be more comfortable
interpreting the term under the CWA than interpreting
other elements of the CWA oense. Indeed, t his is the
case; the Supreme Court and lower courts have interpreted
navigable waters far more often than they have interpreted
any of the other elements.9 e historical role of the courts
in shaping the meaning of t he term navigable waters also
suggests that they should be more willing to disregard or
overrule an Agency interpretation of the term than to d is-
regard or overrule Agency interpretations of other elements
of the CWA oense. Indeed, this too is the case; the Court
has twice overruled EPA and U.S. Army Corps of Engi-
neers (the Corps) interpretations of navigable waters, but
has not overruled their interpretations of other elements
in the C WA oense.10 Finally, the availability of one cen-
tury and a half of judicial decisions interpreting navigable
waters prior to the CWA makes it unsurprising that courts
7. CWA §502(6), 33 U.S.C. §1352(6). e listed categories of materials, how-
ever, cover a vast terri tory. See Jerey G. Miller, Plain Meaning, Precedent,
       
Pollution Oense, 44 ELR 10960, 10963-64 (Nov. 2014) [hereinafter Mill-
er, Pollutant].
8. Compare the discussion of the legislative history of “navigable waters” in
this Article with the discussions of legislative history in Miller, ,
supra note 4, at 10773; and Miller, Pollutant, supra note 7, at 10962-63.
9. e Court has interpreted navigable waters in six decisions: 
, 133 S. Ct. 710, 43
ELR 20004 (2013); Rapanos v. United States, 547 U.S. 715, 36 ELR 20116
(2006);      , 541
U.S. 95, 34 ELR 20021 (2004); 
  , 531 U.S. 159, 31 ELR 20382 (2001);
International Paper Co. v. Ouellette, 479 U.S. 481, 17 ELR 20327 (1987);
and United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR
20086 (1985). It has interpreted “addition” in two decisions and “pollutant”
in three decisions. See Miller, , supra note 4, at 10804-05; Miller,
Pollutant, supra note 7, at 10981-83. e author’s research (set out in tbl. A
to this Article) has found that lower courts interpreted navigable waters in
137 decisions; addition in 63 decisions, see Miller, , supra note 4, at
10804-05; and pollutant in 68 decisions, see Miller, Pollutant, supra note 7,
at 10981-83. e greater number of navigable waters decisions also results
from parties challenging interpretations of that element more than the other
elements, but that probably results from the same factors.
10. Rapanos, 547 U.S. 715; , 531 U.S. 159.
use precedent more often than other interpretive devices
such as plain meaning to determine the meaning of the
term in the CWA. And indeed they have done so: Prec-
edent is by far the most commonly used device for judicial
interpretation of navigable waters,11 while plain meaning is
the most commonly used device for judicial interpretation
of some of the other elements.
e major tension in interpreting the CWA’s navigable
waters element is the inherent conict between judicial
interpretation of Congress’ authority to develop and regulate
navigable waters for promoting interstate and foreign com-
merce, and Congress’ subsequent use of the term to establish
expansive EPA authority for improving and maintaining
water quality. e importance of a waterway for transporta-
tion may have little connection to water quality. Congress
appeared to have understood this disconnect and to distance
CWA jurisdiction from waterborne commerce by dening
navigable waters as “the waters of the United States,” a more
expansive term having nothing to do with transportation.
But because Congress used “navigable waters” as an element
of the CWA oense, it invited judicial focus on the term
rather than on its denition, because courts were familiar
with that term, having interpreted it for over one century
and a half. Courts understood the historical meaning of
navigable waters far more than they understood the mean-
ings of “waters of the United States” or of the CWA’s other
elements. And because of the Supreme Court’s current fas-
cination with textualism, it has great diculty divorcing
navigable waters entirely from waterborne transportation;
“navigable” must mean something.
If the C WA dealt only with pollution control under
the §402 permit program,12 the d isconnect between pro-
motion of interstate commerce a nd protection of water
quality might not have ripened into a jurisdic tional crisis.
e primary issue would h ave been whether pa rticular
tributaries of navigable waters were within the jurisdic-
tion of the CWA, when those t ributaries themselves had
never and could never support waterborne transportation.
Because tributaries, even remote ones,13 contribute both
water and pollution to the navigable waters into which
they ow, they d irectly aect t hose navigable waters. e
water volumes they contribute increa se the navigability of
the receiving waters, and the water pollution they contrib-
11. In the 137 lower court decisions the author found interpreting navigable
waters, precedent was used in 124 decisions. Courts used the second most
popular interpretive device, broad interpretation to achieve statutory goals,
in only 51 decisions. e statistical analysis is set out in tbl. B to this Article.
By contrast, in the 68 decisions interpreting pollutant, courts used plain
meaning in 55 decisions, but precedent in only 27 decisions. See Miller,
Pollutant, supra note 7, at 10806-07.
13. Headwater streams, for instance, contribute 60% of the total ow to north-
eastern streams and rivers. See 79 Fed. Reg. 22188, 22224 (proposed Apr.
21, 2014) (scientic support for EPA’s proposed amendments).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
ute may interfere with the navigabilit y of the receiving
waters. e Court had recogni zed congressional power to
develop ood control projects in watersheds of nav igable
waters to protect against oods on the navigable waters
into which the tributaries directly a nd indirectly owed.14
e same rationale applies to controlling discharges of
pollutants into tributaries of navigable waters to protect
the water quality of the navigable waters into which the
tributaries ow.
But the CWA did not deal only with pollution control
under the §402 permit program; it also dealt with lling
wetlands under t he §404 permit program.15 While wet-
lands contribute both water and pollutants to the naviga-
ble waters into which they ow and protect those navigable
waters f rom ood ing and pollution,16 their contributions
to adjacent or downstream navigation and water quality
may not be apparent to the uninitiated. Moreover, wet-
lands may not exhibit surface water for months at a time,
when to t he untrained eye they may be indistinguishable
from the surrounding dry land. Wetlands pose two prob-
lems for the Court’s historical view or even for the plain
meaning of navigable waters: Wetlands do not directly
support waterborne navigation and, at least when they are
dry, are not waters at all.
Unfortunately, narrowing interpretations of naviga-
ble waters to defeat §404 jurisdiction over wetlands may
also defeat §402 jurisdiction over tributaries of navigable
waters, because terms are to be interpreted in the same
manner throughout a statute,17 unless the statute explicitly
indicates otherwise. e CWA reiterates this interpretive
canon by beginning its denitional §502 “[e]xcept as oth-
erwise specically provided, when used in this chapter ...
‘navigable waters’ ... ‘means’....” And it does not provide
in §402, §404, or elsewhere that the term ha s dierent
meanings in §§402 and 404.
Aside from t he Corps’ initia l, interim regulatory de-
nition of navigable waters, which merely repeated the
Court’s traditional interpretation of the term, EPA and the
Corps’ regulatory de nitions have followed legislative his-
tory to interpret the term broadly. After recent setback s
from the Supreme Court,18 however, the two agencies have
recently proposed an amended denition of “waters of the
United States” that preserves much of their earlier regula-
tions’ breadth, but retrenches it where the Court’s recent
decisions give the agencies no room to do otherwise. e
preamble to the proposed rulemaking oers a detailed jus-
14. See Oklahoma ex rel. Phillips v. Atkinson, 313 U.S. 508 (1941).
16. e Court briey surveyed the benets of wetlands in United States v. Riv-
erside Bayview Homes, Inc., 474 U.S. 121, 134-35, 16 ELR 20086 (1985).
For a more extensive treatment of the subject, see W L. W, L
 W R §2.01[1] (1993).
17. W N. E J., D S I 324
(1994); A S  B A. G, R L 170-73
18. See Rapanos v. United States, 547 U.S. 715, 36 ELR 20116 (2006); Solid
Waste Agency of N. Cook Cnty. v. United States Army Corps of Eng’rs
(), 531 U.S. 159, 31 ELR 20382 (2001).
tication for the controversial portions of the denitions,
much of it scientic.19
ese dynamics frame the inter pretive battles exam-
ined in this Ar ticle. We begin by tracing the development
of the traditional judicial interpretation of naviga ble
waters and how Congress and EPA attempted to ex tend
its meaning. e Art icle then exa mines the prim ary bat-
tleelds for interpret ing navigable waters: tributa ries and
wetland s, isolated waters, groundwater, and EPA’s unitary
theory of navig able waters.20 A long the way, the Article
takes sidelong glances at a wild c ard in these interpre-
tive battles, the development of the CWA’s §404 program
regulat ing the  lling of wetland s. e §404 program has
provided proponents of narrowly interpreting “navig able
waters” with the rhetorica l support that EPA and the
Corps’ broad interpretat ions of t he term me taphorica lly
make water of dry land.
II. The Traditional Legal Meaning of
Navigable Waters
e legal concept of navigable waters originated in medi-
eval Engla nd. e Crown owned the land beneath waters
used for navigation and the public had a common-law
right to use navigable waters for shing and transport.21
We know this public right today as the navigable servi-
tude. Upon independence, the American colonies suc-
ceeded to ownership of the beds beneath navigable waters,
subject to the common-law navigable ser vitude. As the
United States acquired new territories, it took ownership
of the beds beneath their navigable waters, again subject
to the common-law navigable ser vitude. When new states
were formed from those territories, ownership of the beds
beneath the navigable waters transferred to those states,
again subject to the navigable servitude.22
At the time that the 13 colonies formed the United States,
only waters subject to the ebb and ow of the tide were con-
sidered navigable waters.23 is limited concept of navigabil-
ity expanded to meet a growing and industrializing nation’s
needs for federal improvement and regulation of water-
borne commerce and transportation. In Propeller Genesee v.
,24 the Court held that navigable waters included
freshwater. Not long after, it held in Gibbons v. Ogden25 that
19. 79 Fed. Reg. 22188 (proposed Apr. 21, 2014). e scientic support is pro-
vided at 79 Fed. Reg. 22222-52, but is referenced throughout the preamble.
20. For more information on EPA’s unitary theory of navigable waters and its
exemption of water transfers and diversions from §402, see Miller, ,
supra note 4, at 10781-94.
21. Martin v. Waddell’s Lessee, 41 U.S. 367, 407-14 (1842), traces this history
back to the Magna Carta.
22. Pollard v. Hagen, 44 U.S. 212 (1843). e U.S. Constitution did not grant
the shores of navigable waters and the soil beneath them to the United
States, impliedly reserving them to the states. New states have the same
rights, sovereignty, and jurisdiction over navigable waters as the original
states. is is known as the “equal footing” doctrine: New states are ad-
mitted to the Union on an equal footing with the original states. See also
Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892), in which the navigable
servitude gave rise to the public trust doctrine.
23. Wilson v. Blackbird Creek Marsh Co., 27 U.S. 245 (1845).
24. 53 U.S. 443 (1851).
25. 9 Wheat. 1; 21 U.S. 1 (1866).
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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