A Unified Theory of Clean Water Act Jurisdiction.

• Author: Adler, Robert W.

"... the most valuable of all talents, that of never using two words when one will do."

--Thomas Jefferson (1)

CONTENTS INTRODUCTION I. PAST SUPREME COURT APPROACHES TO INTERPRETING WOTUS A. Deference to Agency Scientific Expertise B. Statutory Text and Constitutional Avoidance C. Plain Meaning D. Statutory Text and Purposes E. Proposed Reconciliation II. SYNTHESIZING CWA SCOPE TERMS A. "The Nation's Waters" B. "Water" Versus "Waters" C. WOTUS Versus Navigable" WOTUS D. Synthesis: Toward a Unified Theory of CWA Jurisdiction III. TESTING THE UNIFIED THEORY A. Statutory Objective, Goals, and Structure 1. Aquatic Ecosystem Integrity Objective 2. Zero-Discharge Goal 3. Fishable and Swimmable Waters Goal 4. Federalism Policies 5. Comprehensive Watershed Focus and Planning B. The Fragmented Lines of Clean Water Act Scope Cases 1. The "Addition" and "Discharge" Cases 2. The "Conduit" Cases C. Implications for Past and Future Cases CONCLUSION: KEYS TO THE JURISDICTIONAL LOCKS INTRODUCTION

As it reaches its half-century mark, the modern version of the federal Clean Water Act (CWA or the Act) (2) remains a definitional quagmire. The U.S. Supreme Court, lower courts, and the two federal agencies charged with implementing the law (3) have struggled to interpret its scope ever since its 1972 enactment. As a result, we still lack clarity regarding the most basic questions about the law's reach. That causes massive uncertainty for regulated businesses and landowners, the federal and state agencies (4) that implement the law, and members of the public Congress intended to protect. This Article proposes a unified interpretive approach (a "unified theory") that focuses on the statutory text and its stated goals, (5) considering the whole statute in context, rather than individual terms construed in isolation. (6)

Part of the blame for the CWA's definitional confusion lies with Congress, which failed to heed Jefferson s counsel to avoid two words (or in this case, phrases) when one will do. Congress gave the term "navigable waters" a central place in the statutory scheme, but then redefined it as "the waters of the United States, including the territorial seas" (WOTUS). (7) This reformulation was confusing, because by 1972, "navigable waters" had four separate but well-established legal meanings under U.S. Supreme Court jurisprudence, (8) while WOTUS had no similar legal pedigree. (9) Yet Congress did not define "waters of the United States." Moreover, in some CWA provisions Congress combined the terms into the "navigable waters of the United States." (10) Elsewhere in the CWA Congress used the terms "water," (11) "waters," (12) "the Nation's waters," (13) and an array of other water body descriptors. (14) Because each term often delineates the scope of various statutory programs, this Article refers to them as "scope terms." This proliferation of CWA scope terms (15) has resulted in a decadeslong debate about the range of water bodies subject to the permitting and other regulatory provisions of the Act. (16) Those disputes have bounced back and forth between presidential administrations, and continue to do so.17 The Supreme Court has issued three major decisions on the WOTUS issue, (18) and is poised to decide another case1 (19) regarding the CWA's applicability to wetlands and sloughs in the vicinity of a fen wetland ecosystem that drains via tributary streams into Priest Lake, one of the largest lakes in Idaho. (20)

The public intensity of the WOTUS debate has overshadowed other important disputes over the meaning of related CWA definitions. All center on the meaning and scope of the core operative provision of the statute, section 301(a), (21) which provides: "Except as in compliance with [CWA permitting and pollution control requirements], the discharge of any pollutant by any person shall be unlawful." (22) The scope of this qualified discharge ban (23) turns on the meaning of "discharge of any pollutant." If one inserts the relevant statutory definitions into section 301(a), that provision would read: "Except as in compliance with [CWA permitting and pollution control requirements], the addition of any pollutant to the waters of the United States from any point source by any person shall be unlawful." (24)

Because of this multifaceted framing of the Act's central prohibition, WOTUS is just one of several definitions that delineate what conduct the statute prohibits or regulates, by whom, where, and how. (25) Parties have litigated disputes regarding the meaning and applicability of the terms "addition" (or "'addition' of a pollutant"), (26) "point source" (as distinct from "nonpoint source"), (27) "pollutant," (28) and "person,"(29) and even the meaning and importance of the associated prepositions "from" and "to." (30)

To compound the complex and confusing nature of CWA definitions, several related errors in administrative and judicial interpretive approaches contribute to ongoing confusion about the scope of the CWA. First, as a co-author and I suggested in the context of the "conduit" cases that led to the Supreme Court's decision in County of Maui v. Hawaii Wildlife Fund, (31) some courts have decided CWA-scope cases by construing discrete statutory terms in isolation from the full statutory text, a tendency we called statutory "atomization."(32) In doing so, those courts ignored or minimized the overall structure and purpose of the statute. To paraphrase the common metaphor, they miss the watershed for the creeks.

Second, some CWA decisions do not heed key distinctions the U.S. Supreme Court has made between the "navigable in fact" test established in The Daniel Ball (33) and the broader Commerce Clause test the Court articulated in United States v. Appalachian Electric Power: (34) In the latter case, the Court upheld federal regulation of waterways and their tributaries for purposes other than navigability, such as flood control, watershed development, and electric power production, so long as those purposes had a sufficient impact on interstate commerce. (35) In reaching this result, the Court rejected the notion that cases like Gibbons v. Ogden (36) restrictively anchored federal authority over waterways to navigability. Instead, it clarified that Gibbons recognized navigability as one of many possible links to interstate commerce sufficient to support federal waterway legislation. (37) In the CWA, Congress likewise identified navigability as one of many diverse statutory purposes, (38) all of which justify Commerce Clause regulation.

The WOTUS issue and each of the other lines of jurisdictional analysis with which the agencies and the courts have struggled for nearly a half century can be better explained by considering the full set of statutory terms in context, with attention to how they fit together. Part I establishes a baseline for this analysis by identifying multiple existing approaches to the WOTUS problem adopted by different Supreme Court Justices. Part II proffers a more cohesive theory of how the different pieces of the CWA fit together into an integrated statutory scheme. Part III tests this unified theory in two ways. Part III.A analyzes the unified theory by reference to the CWA's stated objectives, goals, and structure, including its core operative provisions and programs. Part III.B tests the theory in the context of two related lines of CWA jurisdictional cases and explains how more sensible and consistent analysis is possible using this uniform approach to CWA jurisdiction. The Article concludes by explaining how that understanding could guide future statutory clarifications and agency rulemakings, and how it might help inform future judicial interpretations of the statute in a more consistent and workable way.

1. PAST SUPREME COURT APPROACHES TO INTERPRETING WOTUS

   As a baseline to constructing a more integrative analysis of the CWA's scope terms and how they fit together consistent with the full statutory text and structure, it is useful to review the interpretive approaches various U.S. Supreme Court Justices have taken to this issue. As argued below, a combination of methodologies used by several Justices could help reconcile the disparate approaches consistent with the full statutory text and other factors.

   1. Deference to Agency Scientific Expertise

      United States v. Riverside Bayview Homes, (39) the first major case in which the Supreme Court construed the scope of WOTUS, tested CWA regulatory jurisdiction over wetlands adjacent to Black Creek, a navigable tributary to a navigable lake (Lake St. Clair in Michigan). (40) Importantly to later cases, at issue was the Sixth Circuit's ruling that the Army Corps of Engineers (ACE) regulations only applied to wetlands regularly flooded by adjacent surface waters as their source of water to support wetlands vegetation; otherwise, according to the Sixth Circuit, they might constitute an unlawful taking of property. (41) In upholding ACE's regulatory jurisdiction, the Court found it sufficient under the plain text of the ACE regulations that the wetlands in question were inundated by groundwater at a sufficient frequency and magnitude to support wetlands vegetation. (42)

      In a unanimous opinion upholding the ACE regulation and CWA jurisdiction over wetlands adjacent to navigable waters, (43) Justice White reiterated that an agency's construction of statutes it is charged to administer is entitled to deference if "reasonable and not in conflict with the expressed intent of Congress." (44) Moreover, the opinion noted that the line between land and water was a scientific question for which courts should defer to agency expertise:

      In determining the limits of its power to regulate discharges ... the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one.... Where...