OPINION OF SCALIA, J.
RAPANOS V. UNITED STATES
547 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NOS. 04-1034 AND 04-1384
JOHN A. RAPANOS, et ux., et al.,
PETITIONERS
04–1034
v.
UNITED STATES
JUNE CARABELL et al., PETITIONERS
04–1384
v.
UNITED STATES ARMY CORPS OF ENGINEERS
et al.
on writs of certiorari to the united states
court of appeals for the sixth circuit
[June 19, 2006]
Justice Scalia announced
the judgment of the Court, and delivered an opinion, in which The
Chief Justice, Justice Thomas, and Justice Alito join.
In April 1989, petitioner John A.
Rapanos backfilled wetlands on a parcel of land in Michigan that he
owned and sought to develop. This parcel included 54 acres of land
with sometimes-saturated soil conditions. The nearest body of
navigable water was 11 to 20 miles away. 339 F. 3d 447, 449
(CA6 2003)
(Rapanos I). Regulators had informed Mr.
Rapanos that his saturated fields were “waters of the United
States,” 33 U. S. C. §1362(7), that could not be filled
without a permit. Twelve years of criminal and civil litigation
ensued.
The burden of federal regulation on those who
would deposit fill material in locations denominated “waters of the
United States” is not trivial. In deciding whether to grant or deny
a permit, the U. S. Army Corps of Engineers (Corps) exercises the
discretion of an enlightened despot, relying on such factors as
“economics,” “aesthetics,” “recreation,” and “in general, the needs
and welfare of the people,” 33 CFR §320.4(a) (2004).[
Footnote 1] The average applicant for an
individual permit spends 788 days and $271,596 in completing the
process, and the average applicant for a nationwide permit spends
313 days and $28,915—not counting costs of mitigation or design
changes. Sunding & Zilberman, The Economics of Environmental
Regulation by Licensing: An Assessment of Recent Changes to the
Wetland Permitting Process, 42 Natural Resources J. 59, 74–76
(2002). “[O]ver $1.7 billion is spent each year by the private and
public sectors obtaining wetlands permits.”
Id., at 81.
These costs cannot be avoided, because the Clean Water Act
“impose[s] criminal liability,” as well as steep civil fines, “on a
broad range of ordinary industrial and commercial activities.”
Hanousek v.
United States,
528 U. S. 1102, 1103
(2000) (Thomas, J., dissenting from denial of certiorari). In this
litigation, for example, for backfilling his own wet fields, Mr.
Rapanos faced 63 months in prison and hundreds of thousands of
dollars in criminal and civil fines. See
United States v.
Rapanos, 235 F. 3d 256, 260 (CA6 2000).
The enforcement proceedings against Mr.
Rapanos are a small part of the immense expansion of federal
regulation of land use that has occurred under the Clean Water
Act—without any change in the governing statute—during the past
five Presidential administrations. In the last three decades, the
Corps and the Environmental Protection Agency (EPA) have
interpreted their jurisdiction over “the waters of the United
States” to cover 270-to-300 million acres of swampy lands in the
United States—including half of Alaska and an area the size of
California in the lower 48 States. And that was just the beginning.
The Corps has also asserted jurisdiction over virtually any parcel
of land containing a channel or conduit—whether man-made or
natural, broad or narrow, permanent or ephemeral—through which
rainwater or drainage may occasionally or intermittently flow. On
this view, the federally regulated “waters of the United States”
include storm drains, roadside ditches, ripples of sand in the
desert that may contain water once a year, and lands that are
covered by floodwaters once every 100 years. Because they include
the land containing storm sewers and desert washes, the statutory
“waters of the United States” engulf entire cities and immense arid
wastelands. In fact, the entire land area of the United States lies
in some drainage basin, and an endless network of visible channels
furrows the entire surface, containing water ephemerally wherever
the rain falls. Any plot of land containing such a channel may
potentially be regulated as a “water of the United States.”
I
Congress passed the Clean Water
Act (CWA or Act) in 1972. The Act’s stated objective is “to restore
and maintain the chemical, physical, and biological integrity of
the Nation’s waters.” 86 Stat. 816, 33 U. S. C. §1251(a). The
Act also states that “[i]t is the policy of Congress to recognize,
preserve, and protect the primary responsibilities and rights of
States to prevent, reduce, and eliminate pollution, to plan the
development and use (including restoration, preservation, and
enhancement) of land and water resources, and to consult with the
Administrator in the exercise of his authority under this chapter.”
§1251(b).
One of the statute’s principal
provisions is 33 U. S. C. §1311(a), which provides that “the
discharge of any pollutant by any person shall be unlawful.” “The
discharge of a pollutant” is defined broadly to include “any
addition of any pollutant to navigable waters from any point
source,” §1362(12), and “pollutant” is defined broadly to include
not only traditional contaminants but also solids such as “dredged
spoil, . . . rock, sand, [and] cellar dirt,” §1362(6). And,
most relevant here, the CWA defines “navigable waters” as “the
waters of the United States, including the territorial seas.”
§1362(7).
The Act also provides certain exceptions to
its prohibition of “the discharge of any pollutant by any person.”
§1311(a). Section 1342(a) authorizes the Administrator of the EPA
to “issue a permit for the discharge of any pollutant, …
notwithstanding section 1311(a) of this title.” Section 1344
authorizes the Secretary of the Army, acting through the Corps, to
“issue permits … for the discharge of dredged or fill material into
the navigable waters at specified disposal sites.” §1344(a), (d).
It is the discharge of “dredged or fill material”—which, unlike
traditional water pollutants, are solids that do not readily wash
downstream—that we consider today.
For a century prior to the CWA, we had
interpreted the phrase “navigable waters of the United States” in
the Act’s predecessor statutes to refer to interstate waters that
are “navigable in fact” or readily susceptible of being rendered
so.
The Daniel Ball, 10 Wall. 557, 563 (1871); see also
United States v.
Appalachian Elec. Power Co.,
311 U. S. 377,
406 (1940). After passage of the CWA, the Corps initially adopted
this traditional judicial definition for the Act’s term “navigable
waters.” See 39 Fed. Reg. 12119, codified at 33 CFR §209.120(d)(1)
(1974); see also
Solid Waste Agency of Northern Cook Cty.
v.
Army Corps of Engineers,
531 U. S. 159, 168 (2001)
(SWANCC). After a District Court enjoined these
regulations as too narrow,
Natural Resources Defense Council,
Inc. v.
Callaway, 392 F. Supp. 685, 686 (DC
1975), the Corps adopted a far broader definition. See 40 Fed. Reg.
31324–31325 (1975); 42 Fed. Reg. 37144 (1977). The Corps’ new
regulations deliberately sought to extend the definition of “the
waters of the United States” to the outer limits of Congress’s
commerce power. See
id., at 37144, n. 2.
The Corps’ current regulations interpret “the
waters of the United States” to include, in addition to traditional
interstate navigable waters, 33 CFR §328.3(a)(1) (2004), “[a]ll
interstate waters including interstate wetlands,” §328.3(a)(2);
“[a]ll other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation or destruction of which could affect
interstate or foreign commerce,” §328.3(a)(3); “[t]ributaries of
[such] waters,” §328.3(a)(5); and “[w]etlands adjacent to [such]
waters [and tributaries] (other than waters that are themselves
wetlands),” §328.3(a)(7). The regulation defines “adjacent”
wetlands as those “bordering, contiguous [to], or neighboring”
waters of the United States. §328.3(c). It specifically provides
that “[w]etlands separated from other waters of the United States
by man-made dikes or barriers, natural river berms, beach dunes and
the like are ‘adjacent wetlands.’ ”
Ibid.
We first addressed the proper interpretation
of 33 U. S. C. §1362(7)’s phrase “the waters of the United
States” in
United States v.
Riverside Bayview Homes,
Inc.,
474 U. S.
121 (1985). That case concerned a wetland that “was adjacent to
a body of navigable water,” because “the area characterized by
saturated soil conditions and wetland vegetation extended beyond
the boundary of respondent’s property to … a navigable waterway.”
Id., at 131; see also 33 CFR §328.3(b) (2004). Noting that
“the transition from water to solid ground is not necessarily or
even typically an abrupt one,” and that “the Corps must necessarily
choose some point at which water ends and land begins,” 474 U. S.,
at 132, we upheld the Corps’ interpretation of “the waters of the
United States” to include wetlands that “actually abut[ted] on”
traditional navigable waters.
Id., at 135.
Following our decision in
Riverside
Bayview, the Corps adopted increasingly broad interpretations
of its own regulations under the Act. For example, in 1986, to
“clarify” the reach of its jurisdiction, the Corps announced the
so-called “Migratory Bird Rule,” which purported to extend its
jurisdiction to any intrastate waters “[w]hich are or would be used
as habitat” by migratory birds. 51 Fed. Reg. 41217; see also
SWANCC,
supra, at 163–164. In addition, the Corps
interpreted its own regulations to include “ephemeral streams” and
“drainage ditches” as “tributaries” that are part of the “waters of
the United States,” see 33 CFR §328.3(a)(5), provided that they
have a perceptible “ordinary high water mark” as defined in
§328.3(e). 65 Fed. Reg. 12823 (2000). This interpretation extended
“the waters of the United States” to virtually any land feature
over which rainwater or drainage passes and leaves a visible
mark—even if only “the presence of litter and debris.” 33 CFR
§328.3(e). See also U. S. General Accounting Office, Report to the
Chairman, Subcommittee on Energy Policy, Natural Resources and
Regulating Affairs, Committee on Government Reform, House of
Representatives, Waters and Wetlands: Corps of Engineers Needs to
Evaluate Its District Office Practices in Determining Juris-
diction, GAO–04–297, pp. 20–22 (Feb. 2004) (hereinafter GAO
Report), http://www.gao.gov/new.items/d04297.pdf (all Internet
materials as visited June 9, 2006, and available in Clerk of
Court’s case file). Prior to our decision in
SWANCC, lower
courts upheld the application of this expansive definition of
“tributaries” to such entities as storm sewers that contained flow
to covered waters during heavy rainfall,
United States v.
Eidson, 108 F. 3d 1336, 1340–1342 (CA11 1997), and
dry arroyos connected to remote waters through the flow of
groundwater over “centuries,”
Quivira Mining Co. v.
EPA, 765 F. 2d 126, 129 (CA10 1985).
In
SWANCC, we considered the
application of the Corps’ “Migratory Bird Rule” to “an abandoned
sand and gravel pit in northern Illinois.” 531 U. S., at 162.
Observing that “[i]t was the
significant nexus between the
wetlands and ‘navigable waters’ that informed our reading of the
CWA in
Riverside Bayview,”
id., at 167 (emphasis
added), we held that
Riverside Bayview did not establish
“that the jurisdiction of the Corps extends to ponds that are not
adjacent to open water.” 531 U. S., at 168 (emphasis deleted). On
the contrary, we held that “nonnavigable, isolated, intrastate
waters,”
id., at 171—which, unlike the wetlands at issue
in
Riverside Bayview, did not “actually abu[t] on a
navigable waterway,” 531 U. S., at 167—were not included as “waters
of the United States.”
Following our decision in
SWANCC, the
Corps did not significantly revise its theory of federal
jurisdiction under §1344(a). The Corps provided notice of a
proposed rulemaking in light of
SWANCC, 68 Fed. Reg. 1991
(2003), but ultimately did not amend its published regulations.
Because
SWANCC did not directly address tributaries, the
Corps notified its field staff that they “should continue to assert
jurisdiction over traditional navigable waters … and, generally
speaking, their tributary systems (and adjacent wetlands).” 68 Fed.
Reg. 1998. In addition, because
SWANCC did not overrule
Riverside Bayview, the Corps continues to assert
jurisdiction over waters “ ‘neighboring’ ” traditional
navigable waters and their tributaries. 68 Fed. Reg. 1997 (quoting
33 CFR §328.3(c) (2003)).
Even after
SWANCC, the lower courts
have continued to uphold the Corps’ sweeping assertions of
jurisdiction over ephemeral channels and drains as “tributaries.”
For example, courts have held that jurisdictional “tributaries”
include the “intermittent flow of surface water through
approximately 2.4 miles of natural streams and manmade ditches
(paralleling and crossing under I–64),”
Treacy v.
Newdunn Assoc., 344 F. 3d 407, 410 (CA4 2003); a
“roadside ditch” whose water took “a winding, thirty-two-mile path
to the Chesapeake Bay,”
United States v.
Deaton,
332 F. 3d 698, 702 (CA4 2003); irrigation ditches and drains
that intermittently connect to covered waters,
Community Assn.
for Restoration of Environment v.
Henry Bosma Dairy,
305 F. 3d 943, 954–955 (CA9 2002);
Headwaters, Inc.
v.
Talent Irrigation Dist., 243 F. 3d 526, 534 (CA9
2001); and (most implausibly of all) the “washes and arroyos” of an
“arid development site,” located in the middle of the desert,
through which “water courses . . . during periods of heavy
rain,”
Save Our Sonoran, Inc. v.
Flowers, 408
F. 3d 1113, 1118 (CA9 2005).[
Footnote 2]
These judicial constructions of “tributaries”
are not outliers. Rather, they reflect the breadth of the Corps’
determinations in the field. The Corps’ enforcement practices vary
somewhat from district to district because “the definitions used to
make jurisdictional determinations” are deliberately left “vague.”
GAO Report 26; see also
id., at 22. But district offices
of the Corps have treated, as “waters of the United States,” such
typically dry land features as “arroyos, coulees, and washes,” as
well as other “channels that might have little water flow in a
given year.”
Id., at 20–21. They have also applied that
definition to such manmade, intermittently flowing features as
“drain tiles, storm drains systems, and culverts.”
Id., at
24 (footnote omitted).
In addition to “tributaries,” the Corps and
the lower courts have also continued to define “adjacent” wetlands
broadly after
SWANCC. For example, some of the Corps’
district offices have concluded that wetlands are “adjacent” to
covered waters if they are hydrologically connected “through
directional sheet flow during storm events,” GAO Report 18, or if
they lie within the “100-year floodplain” of a body of water—that
is, they are connected to the navigable water by flooding, on
average, once every 100 years,
id., at 17, and n. 16.
Others have concluded that presence within 200 feet of a tributary
automatically renders a wetland “adjacent” and jurisdictional.
Id., at 19. And the Corps has successfully defended such
theories of “adjacency” in the courts, even after
SWANCC’s
excision of “isolated” waters and wetlands from the Act’s coverage.
One court has held since
SWANCC that wetlands separated
from flood control channels by 70-foot-wide berms, atop which ran
maintenance roads, had a “significant nexus” to covered waters
because,
inter alia, they lay “within the 100 year
floodplain of tidal waters.”
Baccarat Fremont Developers,
LLC v.
Army Corps of Engineers, 425 F. 3d 1150, 1152,
1157 (CA9 2005). In one of the cases before us today, the Sixth
Circuit held, in agreement with “[t]he majority of courts,” that
“while a hydrological connection between the non-navigable and
navigable waters is required, there is no ‘direct abutment’
requirement” under
SWANCC for “ ‘adjacency.’ ”
376 F. 3d 629, 639 (2004)
(Rapanos II). And even the
most insubstantial hydrologic connection may be held to constitute
a “significant nexus.” One court distinguished
SWANCC on
the ground that “a molecule of water residing in one of these pits
or ponds [in
SWANCC] could not mix with molecules from
other bodies of water”—whereas, in the case before it, “water
molecules currently present in the wetlands will inevitably flow
towards and mix with water from connecting bodies,” and “[a] drop
of rainwater landing in the Site is certain to intermingle with
water from the [nearby river].”
United States v.
Rueth
Development Co., 189 F. Supp. 2d 874, 877–878 (ND Ind.
2002).
II
In these consolidated cases, we
consider whether four Michigan wetlands, which lie near ditches or
man-made drains that eventually empty into traditional navigable
waters, constitute “waters of the United States” within the meaning
of the Act. Petitioners in No. 04–1034, the Rapanos and their
affiliated businesses, deposited fill material without a permit
into wetlands on three sites near Midland, Michigan: the “Salzburg
site,” the “Hines Road site,” and the “Pine River site.” The
wetlands at the Salzburg site are connected to a man-made drain,
which drains into Hoppler Creek, which flows into the Kawkawlin
River, which empties into Saginaw Bay and Lake Huron. See Brief for
United States in No. 04–1034, p. 11; 339 F. 3d, at 449.
The wetlands at the Hines Road site are connected to something
called the “Rose Drain,” which has a surface connection to the
Tittabawassee River. App. to Pet. for Cert. in No. 04–1034, pp.
A23, B20. And the wetlands at the Pine River site have a surface
connection to the Pine River, which flows into Lake Huron.
Id., at A23–A24, B26. It is not clear whether the
connections between these wetlands and the nearby drains and
ditches are continuous or intermittent, or whether the nearby
drains and ditches contain continuous or merely occasional flows of
water.
The United States brought civil
enforcement proceedings against the Rapanos petitioners. The
District Court found that the three described wetlands were “within
federal jurisdiction” because they were “adjacent to other waters
of the United States,” and held petitioners liable for violations
of the CWA at those sites.
Id., at B32–B35. On appeal, the
United States Court of Appeals for the Sixth Circuit affirmed,
holding that there was federal jurisdiction over the wetlands at
all three sites because “there were hydrological connections
between all three sites and corresponding adjacent tributaries of
navigable waters.” 376 F. 3d, at 643.
Petitioners in No. 04–1384, the Carabells,
were denied a permit to deposit fill material in a wetland located
on a triangular parcel of land about one mile from Lake St. Clair.
A man-made drainage ditch runs along one side of the wetland,
separated from it by a 4-foot-wide man-made berm. The berm is
largely or entirely impermeable to water and blocks drainage from
the wetland, though it may permit occasional overflow to the ditch.
The ditch empties into another ditch or a drain, which connects to
Auvase Creek, which empties into Lake St. Clair. See App. to Pet.
for Cert. in No. 04–1384, pp. 2a–3a.
After exhausting administrative appeals, the
Carabell petitioners filed suit in the District Court, challenging
the exercise of federal regulatory jurisdiction over their site.
The District Court ruled that there was federal jurisdiction
because the wetland “is adjacent to neighboring tributaries of
navigable waters and has a significant nexus to ‘waters of the
United States.’ ”
Id., at 49a. Again the Sixth
Circuit affirmed, holding that the Carabell wetland was “adjacent”
to navigable waters. 391 F. 3d 704, 708 (2004)
(Carabell).
We granted certiorari and consolidated the
cases, 546 U. S. ___ (2005), to decide whether these wetlands
constitute “waters of the United States” under the Act, and if so,
whether the Act is constitutional.
III
The Rapanos petitioners contend
that the terms “navigable waters” and “waters of the United States”
in the Act must be limited to the traditional definition of
The
Daniel Ball, which required that the “waters” be navigable in
fact, or susceptible of being rendered so. See 10 Wall., at 563.
But this definition cannot be applied wholesale to the CWA. The Act
uses the phrase “navigable waters” as a
defined term, and
the definition is simply “the waters of the United States.” 33 U.
S. C. §1362(7). Moreover, the Act provides, in certain
circumstances, for the substitution of state for federal
jurisdiction over “navigable waters …
other than those
waters which are presently used, or are susceptible to use in their
natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce … including wetlands
adjacent thereto.” §1344(g)(1) (emphasis added). This provision
shows that the Act’s term “navigable waters” includes something
more than traditional navigable waters. We have twice stated that
the meaning of “navigable waters” in the Act is broader than the
traditional understanding of that term,
SWANCC, 531 U. S.,
at 167;
Riverside Bayview, 474 U. S., at 133.[
Footnote 3] We have also emphasized,
however, that the qualifier “navigable” is not devoid of
significance,
SWANCC,
supra, at 172.
We need not decide the precise
extent to which the qualifiers “navigable” and “of the United
States” restrict the coverage of the Act. Whatever the scope of
these qualifiers, the CWA authorizes federal jurisdiction only over
“waters.” 33 U. S. C. §1362(7). The only natural definition of
the term “waters,” our prior and subsequent judicial constructions
of it, clear evidence from other provisions of the statute, and
this Court’s canons of construction all confirm that “the waters of
the United States” in §1362(7) cannot bear the expansive meaning
that the Corps would give it.
The Corps’ expansive approach might be
arguable if the CSA defined “navigable waters” as “water of the
United States.” But “the waters of the United States” is something
else. The use of the definite article (“the”) and the plural number
(“waters”) show plainly that §1362(7) does not refer to water in
general. In this form, “the waters” refers more narrowly to water
“[a]s found in streams and bodies forming geographical features
such as oceans, rivers, [and] lakes,” or “the flowing or moving
masses, as of waves or floods, making up such streams or bodies.”
Webster’s New International Dictionary 2882 (2d ed. 1954)
(hereinafter Webster’s Second).[
Footnote 4] On this definition, “the waters of the United
States” include only relatively permanent, standing or flowing
bodies of water.[
Footnote 5]
The definition refers to water as found in “streams,” “oceans,”
“rivers,” “lakes,” and “bodies” of water “forming geographical
features.”
Ibid. All of these terms connote continuously
present, fixed bodies of water, as opposed to ordinarily dry
channels through which water occasionally or intermittently flows.
Even the least substantial of the definition’s terms, namely
“streams,” connotes a continuous flow of water in a permanent
channel—especially when used in company with other terms such as
“rivers,” “lakes,” and “oceans.”[
Footnote 6] None of these terms encompasses transitory
puddles or ephemeral flows of water.
The restriction of “the waters of the United
States” to exclude channels containing merely intermittent or
ephemeral flow also accords with the commonsense understanding of
the term. In applying the definition to “ephemeral streams,” “wet
meadows,” storm sewers and culverts, “directional sheet flow during
storm events,” drain tiles, man-made drainage ditches, and dry
arroyos in the middle of the desert, the Corps has stretched the
term “waters of the United States” beyond parody. The plain
language of the statute simply does not authorize this “Land Is
Waters” approach to federal jurisdiction.
In addition, the Act’s use of the traditional
phrase “navigable waters” (the defined term) further confirms that
it confers jurisdiction only over relatively
permanent
bodies of water. The Act adopted that traditional term from its
predecessor statutes. See
SWANCC, 531 U. S., at 180
(Stevens, J., dissenting). On the traditional understanding,
“navigable waters” included only discrete
bodies of water.
For example, in
The Daniel Ball, we used the terms
“waters” and “rivers” interchangeably. 10 Wall., at 563. And in
Appalachian Electric, we consistently referred to the
“navigable waters” as “waterways.” 311 U. S., at 407–409. Plainly,
because such “waters” had to be navigable in fact or susceptible of
being rendered so, the term did not include ephemeral flows. As we
noted in
SWANCC, the traditional term “navigable
waters”—even though defined as “the waters of the United
States”—carries
some of its original substance: “[I]t is
one thing to give a word limited effect and quite another to give
it no effect whatever.” 531 U. S., at 172. That limited effect
includes, at bare minimum, the ordinary presence of water.
Our subsequent interpretation of the phrase
“the waters of the United States” in the CWA likewise confirms this
limitation of its scope. In
Riverside Bayview, we stated
that the phrase in the Act referred primarily to “rivers, streams,
and other
hydrographic features more conventionally
identifiable as ‘waters’ ” than the wetlands adjacent to
such features. 474 U. S., at 131 (emphasis added). We thus echoed
the dictionary definition of “waters” as referring to “streams and
bodies
forming geographical features such as oceans,
rivers, [and] lakes.” Webster’s Second 2882 (emphasis added).
Though we upheld in that case the inclusion of wetlands abutting
such a “hydrographic featur[e]”—principally due to the difficulty
of drawing any clear boundary between the two, see 474 U. S., at
132; Part IV,
infra—nowhere did we suggest that “the
waters of the United States” should be expanded to include, in
their own right, entities other than “hydrographic features more
conventionally identifiable as ‘waters.’ ” Likewise, in both
Riverside Bayview and
SWANCC, we repeatedly
described the “navigable waters” covered by the Act as “open water”
and “open waters.” See
Riverside Bayview,
supra,
at 132, and n. 8, 134;
SWANCC,
supra, at
167, 172. Under no rational interpretation are typically dry
channels described as “
open waters.”
Most significant of all, the CWA itself
categorizes the channels and conduits that typically carry
intermittent flows of water separately from “navigable waters,” by
including them in the definition of “ ‘point source.’ ”
The Act defines “ ‘point source’ ” as “any discernible,
confined and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, or
vessel or other floating craft, from which pollutants are or may be
discharged.” 33 U. S. C. §1362(14). It also defines
“ ‘discharge of a pollutant’ ” as “any addition of any
pollutant
to navigable waters
from any point
source.” §1362(12)(A) (emphases added). The definitions thus
conceive of “point sources” and “navigable waters” as separate and
distinct categories. The definition of “discharge” would make
little sense if the two categories were significantly overlapping.
The separate classification of “ditch[es], channel[s], and
conduit[s]”—which are terms ordinarily used to describe the
watercourses through which
intermittent waters typically
flow—shows that these are, by and large,
not “waters of
the United States.”[
Footnote
7]
Moreover, only the foregoing definition of
“waters” is consistent with the CWA’s stated “policy of Congress to
recognize, preserve, and protect the primary responsibilities and
rights of the States to prevent, reduce, and eliminate pollution,
[and] to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources
… .” §1251(b). This statement of policy was included in the
Act as enacted in 1972, see 86 Stat. 816, prior to the addition of
the optional state administration program in the 1977 amendments,
see 91 Stat. 1601. Thus the policy plainly referred to something
beyond the subsequently added state administration program of 33 U.
S. C. §1344(g)–(
l). But the expansive theory advanced
by the Corps, rather than “preserv[ing] the primary rights and
responsibilities of the States,” would have brought virtually all
“plan[ning of] the development and use . . . of land and water
resources” by the States under federal control. It is therefore an
unlikely reading of the phrase “the waters of the United
States.”[
Footnote 8]
Even if the phrase “the waters of the United
States” were ambiguous as applied to intermittent flows, our own
canons of construction would establish that the Corps’
interpretation of the statute is impermissible. As we noted in
SWANCC, the Government’s expansive interpretation would
“result in a significant impingement of the States’ traditional and
primary power over land and water use.” 531 U. S., at 174.
Regulation of land use, as through the issuance of the development
permits sought by petitioners in both of these cases, is a
quintessential state and local power. See
FERC v.
Mississippi,
456 U. S. 742, 768, n.
30 (1982);
Hess v.
Port Authority Trans-Hudson
Corporation,
513
U. S. 30, 44 (1994). The extensive federal jurisdiction urged
by the Government would authorize the Corps to function as a
de
facto regulator of immense stretches of intrastate land—an
authority the agency has shown its willingness to exercise with the
scope of discretion that would befit a local zoning board. See 33
CFR §320.4(a)(1) (2004). We ordinarily expect a “clear and
manifest” statement from Congress to authorize an unprecedented
intrusion into traditional state authority. See
BFP v.
Resolution Trust Corporation,
511 U. S. 531, 544
(1994). The phrase “the waters of the United States” hardly
qualifies.
Likewise, just as we noted in
SWANCC,
the Corps’ interpretation stretches the outer limits of Congress’s
commerce power and raises difficult questions about the ultimate
scope of that power. See 531 U. S., at 173. (In developing the
current regulations, the Corps consciously sought to extend its
authority to the farthest reaches of the commerce power. See 42
Fed. Reg. 37127 (1977).) Even if the term “the waters of the United
States” were ambiguous as applied to channels that sometimes host
ephemeral flows of water (which it is not), we would expect a
clearer statement from Congress to authorize an agency theory of
jurisdiction that presses the envelope of constitutional validity.
See
Edward J. DeBartolo Corp. v.
Florida Gulf Coast
Building & Constr. Trades Council,
485 U. S. 568, 575
(1988).[
Footnote 9]
In sum, on its only plausible interpretation,
the phrase “the waters of the United States” includes only those
relatively permanent, standing or continuously flowing bodies of
water “forming geographic features” that are described in ordinary
parlance as “streams[,] … oceans, rivers, [and] lakes.” See
Webster’s Second 2882. The phrase does not include channels through
which water flows intermittently or ephemerally, or channels that
periodically provide drainage for rainfall. The Corps’ expansive
interpretation of the “the waters of the United States” is thus not
“based on a permissible construction of the statute.”
Chevron
U. S. A. Inc. v.
Natural Resources Defense
Council,
Inc., 467 U. S. 837, 843
(1984).
IV
In
Carabell, the Sixth
Circuit held that the nearby ditch constituted a “tributary” and
thus a “water of the United States” under 33 CFR §328.3(a)(5)
(2004). See 391 F. 3d, at 708–709. Likewise in
Rapanos, the Sixth Circuit held that the nearby ditches
were “tributaries” under §328(a)(5). 376 F. 3d, at 643. But
Rapanos II also stated that, even if the ditches were not
“waters of the United States,” the wetlands were “adjacent” to
remote traditional navigable waters in virtue of the
wetlands’ “hydrological connection” to them. See
id., at
639–640. This statement reflects the practice of the Corps’
district offices, which may “assert jurisdiction over a wetland
without regulating the ditch connecting it to a water of the United
States.” GAO Report 23. We therefore address in this Part whether a
wetland may be considered “adjacent to” remote “waters of the
United States,” because of a mere hydrologic connection to
them.
In
Riverside Bayview, we
noted the textual difficulty in including “wetlands” as a subset of
“waters”: “On a purely linguistic level, it may appear unreasonable
to classify ‘lands,’ wet or otherwise, as ‘waters.’ ” 474 U.
S., at 132. We acknowledged, however, that there was an inherent
ambiguity in drawing the boundaries of any “waters”:
“[T]he 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. Rather,
between open waters and dry land may lie shallows, marshes,
mudflats, swamps, bogs—in short, a huge array of areas that are not
wholly aquatic but nevertheless fall far short of being dry land.
Where on this continuum to find the limit of ‘waters’ is far from
obvious.”
Ibid.
Because of this inherent
ambiguity, we deferred to the agency’s inclusion of wetlands
“actually abut[ting]” traditional navigable waters: “Faced with
such a problem of defining the bounds of its regulatory authority,”
we held, the agency could reasonably conclude that a wetland that
“adjoin[ed]” waters of the United States is itself a part of those
waters. Id., at 132, 135, and n. 9. The difficulty of
delineating the boundary between water and land was central to our
reasoning in the case: “In view of the breadth of federal
regulatory authority contemplated by the Act itself and
the
inherent difficulties of defining precise bounds to regulable
waters, the Corps’ ecological judgment about the relationship
between waters and their adjacent wetlands provides an adequate
basis for a legal judgment that adjacent wetlands may be defined as
waters under the Act.”
Id., at 134 (emphasis
added).[
Footnote 10]
When we characterized the holding of
Riverside Bayview in
SWANCC, we referred to the
close connection between waters and the wetlands that they
gradually blend into: “It was the
significant nexus
between the wetlands and ‘navigable waters’ that informed our
reading of the CWA in
Riverside Bayview Homes.” 531 U. S.,
at 167 (emphasis added). In particular,
SWANCC rejected
the notion that the ecological considerations upon which the Corps
relied in
Riverside Bayview—and upon which the dissent
repeatedly relies today, see
post, at 10–11, 12, 13–14,
15, 18–19, 21–22, 24–25—provided an
independent basis for
including entities like “wetlands” (or “ephemeral streams”) within
the phrase “the waters of the United States.”
SWANCC found
such ecological considerations irrelevant to the question whether
physically isolated waters come within the Corps’ jurisdiction. It
thus confirmed that
Riverside Bayview rested upon the
inherent ambiguity in defining where water ends and abutting
(“adjacent”) wetlands begin, permitting the Corps’ reliance on
ecological considerations
only to resolve that ambiguity
in favor of treating all abutting wetlands as waters. Isolated
ponds were not “waters of the United States” in their own right,
see 531 U. S., at 167, 171, and presented no boundary-drawing
problem that would have justified the invocation of ecological
factors to treat them as such.
Therefore,
only those wetlands with a
continuous surface connection to bodies that are “waters of the
United States” in their own right, so that there is no clear
demarcation between “waters” and wetlands, are “adjacent to” such
waters and covered by the Act. Wetlands with only an intermittent,
physically remote hydrologic connection to “waters of the United
States” do not implicate the boundary-drawing problem of
Riverside Bayview, and thus lack the necessary connection
to covered waters that we described as a “significant nexus” in
SWANCC. 531 U. S., at 167. Thus, establishing that
wetlands such as those at the Rapanos and Carabell sites are
covered by the Act requires two findings: First, that the adjacent
channel contains a “wate[r] of the United States,” (
i.e.,
a relatively permanent body of water connected to traditional
interstate navigable waters); and second, that the wetland has a
continuous surface connection with that water, making it difficult
to determine where the “water” ends and the “wetland” begins.
V
Respondents and their
amici urge that such restrictions on the scope of
“navigable waters” will frustrate enforcement against traditional
water polluters under 33 U. S. C. §§1311 and 1342. Because the
same definition of “navigable waters” applies to the entire
statute, respondents contend that water polluters will be able to
evade the permitting requirement of §1342(a) simply by discharging
their pollutants into noncovered intermittent watercourses that lie
upstream of covered waters. See Tr. of Oral Arg. 74–75.
That is not so. Though we do not
decide this issue, there is no reason to suppose that our
construction today significantly affects the enforcement of §1342,
inasmuch as lower courts applying §1342 have not characterized
intermittent channels as “waters of the United States.” The Act
does not forbid the “addition of any pollutant
directly to
navigable waters from any point source,” but rather the “addition
of any pollutant
to navigable waters.” §1362(12)(A)
(emphasis added); §1311(a). Thus, from the time of the CWA’s
enactment, lower courts have held that the discharge into
intermittent channels of any pollutant
that naturally washes
downstream likely violates §1311(a), even if the pollutants
discharged from a point source do not emit “directly into” covered
waters, but pass “through conveyances” in between.
United
States v.
Velsicol Chemical Corp., 438 F. Supp.
945, 946–947 (WD Tenn. 1976) (a municipal sewer system separated
the “point source” and covered navigable waters). See also
Sierra Club v.
El Paso Gold Mines, Inc., 421
F. 3d 1133, 1137, 1141 (CA10 2005) (2.5 miles of tunnel
separated the “point source” and “navigable waters”).
In fact, many courts have held that such
upstream, intermittently flowing channels themselves constitute
“point sources” under the Act. The definition of “point source”
includes “any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which pollutants
are or may be discharged.” 33 U. S. C. §1362(14). We have held
that the Act “makes plain that a point source need not be the
original source of the pollutant; it need only convey the pollutant
to ‘navigable waters.’ ”
South Fla. Water Management
Dist. v.
Miccosukee Tribe,
541 U. S. 95, 105 (2004).
Cases holding the intervening channel to be a point source include
United States v.
Ortiz, 427 F. 3d 1278, 1281
(CA10 2005) (a storm drain that carried flushed chemicals from a
toilet to the Colorado River was a “point source”), and
Dague v.
Burlington, 935 F. 2d 1343,
1354–1355 (CA2 1991) (a culvert connecting two bodies of navigable
water was a “point source”), rev’d on other grounds,
505 U. S. 557 (1992).
Some courts have even adopted both the “indirect discharge”
rationale and the “point source” rationale in the alternative,
applied to the same facts. See,
e.g.,
Concerned Area
Residents for Environment v.
Southview Farm, 34
F. 3d 114, 118–119 (CA2 1994). On either view, however, the
lower courts have seen no need to classify the intervening conduits
as “waters of the United States.”
In contrast to the pollutants normally covered
by the permitting requirement of §1342(a), “dredged or fill
material,” which is typically deposited for the sole purpose of
staying put, does not normally wash downstream,[
Footnote 11] and thus does not normally
constitute an “addition … to navigable waters” when deposited in
upstream isolated wetlands. §§1344(a), 1362(12). The Act recognizes
this distinction by providing a separate permitting program for
such discharges in §1344(a). It does not appear, therefore, that
the interpretation we adopt today significantly reduces the scope
of §1342 of the Act.
Respondents also urge that the narrower
interpretation of “waters” will impose a more difficult burden of
proof in enforcement proceedings under §§1311(a) and 1342(a), by
requiring the agency to demonstrate the downstream flow of the
pollutant along the intermittent channel to traditional “waters.”
See Tr. of Oral Arg. 57. But, as noted above, the lower courts do
not generally rely on characterization of intervening channels as
“waters of the United States” in applying §1311 to the traditional
pollutants subject to §1342. Moreover, the proof of downstream flow
of pollutants required under §1342 appears substantially similar,
if not identical, to the proof of a hydrologic connection that
would be required, on the Sixth Circuit’s theory of jurisdiction,
to prove that an upstream channel or wetland is a “wate[r] of the
United States.” See
Rapanos II, 376 F. 3d, at 639.
Compare,
e.g., App. to Pet. for Cert. in No. 04–1034, at
B11, B20, B26 (testimony of hydrologic connections based on
observation of surface water connections), with
Southview
Farm,
supra, at 118–121 (testimony of discharges
based on observation of the flow of polluted water). In either
case, the agency must prove that the contaminant-laden waters
ultimately reach covered waters.
Finally, respondents and many
amici
admonish that narrowing the definition of “the waters of the United
States” will hamper federal efforts to preserve the Nation’s
wetlands. It is not clear that the state and local conservation
efforts that the CWA explicitly calls for, see 33 U. S. C.
§1251(b), are in any way inadequate for the goal of preservation.
In any event, a Comprehensive National Wetlands Protection Act is
not before us, and the “wis[dom]” of such a statute,
post,
at 19 (opinion of Stevens, J.), is beyond our ken. What is clear,
however, is that Congress did not enact one when it granted the
Corps jurisdiction over only “the
waters of the United
States.”
VI
In an opinion long on praise of
environmental protection and notably short on analysis of the
statutory text and structure, the dissent would hold that “the
waters of the United States” include any wetlands “adjacent” (no
matter how broadly defined) to “tributaries” (again, no matter how
broadly defined) of traditional navigable waters. For legal support
of its policy-laden conclusion, the dissent relies exclusively on
two sources: “[o]ur unanimous opinion in
Riverside
Bayview,”
post, at 6; and “Congress’ deliberate
acquiescence in the Corps’ regulations in 1977,”
post, at
11. Each of these is demonstrably inadequate to support the
apparently limitless scope that the dissent would permit the Corps
to give to the Act.
A
The dissent’s assertion that
Riverside Bayview “squarely controls these cases,”
post, at 6, is wholly implausible. First,
Riverside
Bayview could not possibly support the dissent’s acceptance of
the Corps’ inclusion of dry beds as “tributaries,”
post,
at 19, because the definition of tributaries was not at issue in
that case.
Riverside Bayview addressed only the Act’s
inclusion of wetlands abutting navigable-in-fact waters, and said
nothing at all about what non-navigable tributaries the Act might
also cover.
Riverside Bayview
likewise provides no support for the dissent’s complacent
acceptance of the Corps’ definition of “adjacent,” which (as noted
above) has been extended beyond reason to include,
inter
alia, the 100-year floodplain of covered waters. See
supra, at 9. The dissent notes that
Riverside
Bayview quoted without comment the Corps’ description of
“adjacent” wetlands as those “that form the border of or are in
reasonable proximity to other waters of the United States.”
Post, at 8 (citing 474 U. S., at 134 (quoting 42 Fed. Reg.
37128)). As we have already discussed, this quotation provides no
support for the inclusion of physically unconnected wetlands as
covered “waters.” See
supra, at 22–23, n. 10. The
dissent relies principally on a footnote in
Riverside
Bayview recognizing that “ ‘not every adjacent wetland is
of great importance to the environment of adjoining bodies of
water,’ ” and that all “ ‘adjacent’ ” wetlands are
nevertheless covered by the Act,
post, at 8 (quoting 474
U. S., at 135, n. 9). Of course, this footnote says
nothing to support the dissent’s broad definition of
“adjacent”—quite the contrary, the quoted sentence uses “adjacent”
and “adjoining”
interchangeably, and the footnote
qualifies a sentence holding that the wetland was covered
“
[b]ecause” it “actually abut[ted] on a navigable
waterway.”
Id., at 135 (emphasis added). Moreover, that
footnote’s assertion that the Act may be interpreted to include
even those adjoining wetlands that are “lacking in importance to
the aquatic environment,”
id., at 135, n. 9, confirms
that the scope of ambiguity of “the waters of the United States” is
determined by a wetland’s
physical connection to covered
waters,
not its ecological relationship thereto.
The dissent reasons (1) that
Riverside
Bayview held that “the waters of the United States” include
“adjacent wetlands,” and (2) we must defer to the Corps’
interpretation of the ambiguous word “adjacent.”
Post, at
20–21. But this is mere legerdemain. The phrase “adjacent wetlands”
is not part of the statutory definition that the Corps is
authorized to interpret, which refers only to “the waters of the
United States,” 33 U. S. C. §1362(7).[
Footnote 12] In expounding the term “adjacent”
as used in
Riverside Bayview, we are explaining
our
own prior use of that word to interpret the definitional
phrase “the waters of the United States.” However ambiguous the
term may be in the abstract, as we have explained earlier,
“adjacent” as used in
Riverside Bayview is not ambiguous
between “physically abutting” and merely “nearby.” See
supra, at 21–23.
The dissent would distinguish
SWANCC
on the ground that it “had nothing to say about wetlands,”
post, at 9—
i.e., it concerned “isolated
ponds” rather than isolated
wetlands. This is the
ultimate distinction without a difference. If isolated “permanent
and seasonal ponds of varying size … and depth,” 531 U. S., at
163—which, after all, might at least be described as “waters” in
their own right—did not constitute “waters of the United States,”
a fortiori, isolated swampy
lands do not
constitute “waters of the United States.” See also 474 U. S., at
132. As the author of today’s dissent has written, “[i]f, as I
believe, actually navigable waters lie at the very heart of
Congress’ commerce power and ‘isolated,’ nonnavigable waters lie
closer to … the margin, ‘isolated wetlands,’ which are themselves
only marginally ‘waters,’ are the most marginal category of ‘waters
of the United States’ potentially covered by the statute.” 531 U.
S., at 187, n. 13 (Stevens, J., dissenting).
The only other ground that the dissent offers
to distinguish
SWANCC is that, unlike the ponds in
SWANCC, the wetlands in these cases are “adjacent to
navigable bodies of water and their tributaries”—where “adjacent”
may be interpreted who-knows-how broadly. It is not clear why
roughly defined physical proximity should make such a
difference—without actual abutment, it raises no boundary-drawing
ambiguity, and it is undoubtedly a poor proxy for ecological
significance. In fact, though the dissent is careful to restrict
its discussion to wetlands “adjacent” to tributaries, its
reasons for including those wetlands are strictly
ecological—such wetlands would be included because they “serve …
important water quality roles,”
post, at 11, and “play
important roles in the watershed,”
post, at 18–19. This
reasoning would swiftly overwhelm
SWANCC altogether; after
all, the ponds at issue in
SWANCC could, no less than the
wetlands in these cases, “offer ‘nesting, spawning, rearing and
resting sites for aquatic or land species,’ ” and
“ ‘serve as valuable storage areas for storm and flood
waters,’ ”
post, at 9–10. The dissent’s exclusive
focus on ecological factors, combined with its total deference to
the Corps’ ecological judgments, would permit the Corps to regulate
the entire country as “waters of the United States.”
B
Absent a plausible ground in our
case law for its sweeping position, the dissent relies heavily on
“Congress’ deliberate acquiescence in the Corps’ regulations in
1977,”
post, at 11—noting that “[w]e found [this
acquiescence] significant in
Riverside Bayview,” and even
“acknowledged in
SWANCC” that we had done so,
post, at 12.
SWANCC “acknowledged” that
Riverside Bayview had relied on congressional acquiescence
only to criticize that reliance. It reasserted in no uncertain
terms our oft-expressed skepticism towards reading the tea leaves
of congressional inaction:
“Although we have recognized congressional
acquiescence to administrative interpretations of a statute in some
situations, we have done so with extreme care. Failed legislative
proposals are a particularly dangerous ground on which to rest an
interpretation of a prior statute. … The relationship between the
actions and inactions of the 95th Congress and the intent of the
92d Congress in passing [§1344(a)] is also considerably attenuated.
Because subsequent history is less illuminating than the
contemporaneous evidence, respondents face a difficult task in
overcoming the plain text and import of [§1344(a)].” 531 U. S., at
169 (citations, internal quotation marks, and footnote
omitted).
Congress takes no governmental
action except by legislation. What the dissent refers to as
“Congress’ deliberate acquiescence” should more appropriately be
called Congress’s failure to express any opinion. We have no idea
whether the Members’ failure to act in 1977 was attributable to
their belief that the Corps’ regulations were correct, or rather to
their belief that the courts would eliminate any excesses, or
indeed simply to their unwillingness to confront the environmental
lobby. To be sure, we have sometimes relied on congressional
acquiescence when there is evidence that Congress considered and
rejected the “
precise issue” presented before the Court,
Bob Jones Univ. v.
United States,
461 U. S. 574, 600
(1983) (emphasis added). However, “[a]bsent such
overwhelming
evidence of acquiescence, we are loath to replace the plain
text and original understanding of a statute with an amended agency
interpretation.”
SWANCC,
supra, at 169, n. 5
(emphasis added).
The dissent falls far short of producing
“overwhelming evidence” that Congress considered and failed to act
upon the “precise issue” before the Court today—namely, what
constitutes an “adjacent” wetland covered by the Act. Citing
Riverside Bayview’s account of the 1977 debates, the
dissent claims nothing more than that Congress “conducted extensive
debates about the Corps’ regulatory jurisdiction over wetlands
[and] rejected efforts to limit that jurisdiction … .”
Post, at 11. In fact, even that vague description goes too
far. As recounted in
Riverside Bayview, the 1977 debates
concerned a proposal to “limi[t] the Corps’ authority under [§1344]
to waters navigable in fact and their adjacent wetlands (defined as
wetlands periodically inundated by contiguous navigable waters),”
474 U. S., at 136. In rejecting this proposal, Congress merely
failed to enact a limitation of “waters” to include only
navigable-in-fact waters—an interpretation we affirmatively reject
today, see
supra, at 12—and a definition of wetlands based
on “periodi[c] inundat[ion]” that appears almost nowhere in the
briefs or opinions of these cases.[
Footnote 13] No plausible interpretation of this
legislative inaction can construe it as an implied endorsement of
every jot and tittle of the Corps’ 1977 regulations. In fact,
Riverside Bayview itself relied on this legislative
inaction only as “at least some evidence of the reasonableness” of
the agency’s inclusion of adjacent wetlands under the Act, 474 U.
S., at 137, and for the observation that “even those who would have
restricted the reach of the Corps’ jurisdiction” would not have
excised adjacent wetlands,
ibid. Both of these conclusions
are perfectly consistent with our interpretation, and neither
illuminates the disputed question of what constitutes an “adjacent”
wetland.
C
In a curious appeal to entrenched
Executive error, the dissent contends that “the appropriateness of
the Corps’ 30-year implementation of the Clean Water Act should be
addressed to Congress or the Corps rather than to the Judiciary.”
Post, at 14; see also
post, at 2, 22. Surely this
is a novel principle of administrative law—a sort of 30-year
adverse possession that insulates disregard of statutory text from
judicial review. It deservedly has no precedent in our
jurisprudence. We did not invoke such a principle in
SWANCC, when we invalidated one aspect of the Corps’
implementation.
The dissent contends that
“[b]ecause there is ambiguity in the phrase ‘waters of the United
States’ and because interpreting it broadly to cover such ditches
and streams advances the purpose of the Act, the Corps’ approach
should command our deference.”
Post, at 19. Two defects in
a single sentence: “[W]aters of the United States” is in
some respects ambiguous. The
scope of that
ambiguity, however, does not conceivably extend to whether storm
drains and dry ditches are “waters,” and hence does not support the
Corps’ interpretation. And as for advancing “the purpose of the
Act”: We have often criticized that last resort of extravagant
interpretation, noting that no law pursues its purpose at all
costs, and that the textual limitations upon a law’s scope are no
less a part of its “purpose” than its substantive authorizations.
See,
e.g.,
Director, Office of Workers’ Compensation
Programs v.
Newport News Shipbuilding & Dry Dock
Co.,
514 U. S.
122, 135–136 (1995).
Finally, we could not agree more with the
dissent’s statement,
post, at 14, that “[w]hether the
benefits of particular conservation measures outweigh their costs
is a classic question of public policy that should not be answered
by appointed judges.” Neither, however, should it be answered by
appointed officers of the Corps of Engineers in contradiction of
congressional direction. It is the dissent’s opinion, and not ours,
which appeals not to a reasonable interpretation of enacted text,
but to the great environmental benefits that a patently
unreasonable interpretation can achieve. We have begun our
discussion by mentioning, to be sure, the high costs imposed by
that interpretation—but they are in no way the basis for our
decision, which rests, plainly and simply, upon the limited meaning
that can be borne by the phrase “waters of the United States.”
VII
Justice Kennedy’s opinion
concludes that our reading of the Act “is inconsistent with its
text, structure, and purpose.”
Post, at 19. His own
opinion, however, leaves the Act’s “text” and “structure” virtually
unaddressed, and rests its case upon an interpretation of the
phrase “significant nexus,”
ibid., which appears in one of
our opinions.
To begin with, Justice Kennedy’s
reading of “significant nexus” bears no easily recognizable
relation to either the case that used it
(SWANCC) or to
the earlier case that that case purported to be interpreting
(Riverside Bayview). To establish a “significant nexus,”
Justice Kennedy would require the Corps to “establish … on a
case-by-case basis” that wetlands adjacent to nonnavigable
tributaries “significantly affect the chemical, physical, and
biological integrity of other covered waters more readily
understood as ‘navigable.’ ”
Post, at 25, 23. This
standard certainly does not come from
Riverside Bayview,
which explicitly rejected such case-by-case determinations of
ecological significance for the
jurisdictional question
whether a wetland is covered, holding instead that
all
physically connected wetlands are covered. 474 U. S., at 135,
n. 9. It is true enough that one reason for accepting that
physical-connection criterion was the likelihood that a physically
connected wetland would have an ecological effect upon the adjacent
waters. But case-by-case determination of ecological effect
was
not the test. Likewise, that test cannot be derived from
SWANCC’s characterization of
Riverside Bayview,
which emphasized that the wetlands which possessed a “significant
nexus” in that earlier case “actually abutted on a navigable
waterway,” 531 U. S., at 167, and which
specifically
rejected the argument that physically unconnected ponds could
be included based on their ecological connection to covered waters.
In fact, Justice Kennedy acknowledges that neither
Riverside
Bayview nor
SWANCC required, for wetlands abutting
navigable-in-fact waters, the case-by-case ecological determination
that he proposes for wetlands that neighbor nonnavigable
tributaries. See
post, at 23. Thus, Justice Kennedy
misreads
SWANCC’s “significant nexus” statement as
mischaracterizing
Riverside Bayview to adopt a
case-by-case test of ecological significance; and then transfers
that standard to a context that
Riverside Bayview
expressly declined to address (namely, wetlands nearby
non-navigable tributaries); while all the time
conceding
that this standard does not apply in the context that
Riverside
Bayview did address (wetlands abutting navigable
waterways). Truly, this is “turtles all the way down.”[
Footnote 14]
But misreading our prior decisions is not the
principal problem. The principal problem is reading them in utter
isolation from the text of the Act. One would think, after reading
Justice Kennedy’s exegesis, that the crucial provision of the text
of the CWA was a jurisdictional requirement of “significant nexus”
between wetlands and navigable waters. In fact, however, that
phrase appears nowhere in the Act, but is taken from
SWANCC’s cryptic characterization of the holding of
Riverside Bayview.
Our interpretation of the
phrase is both consistent with those opinions
and
compatible with what the Act
does establish as the
jurisdictional criterion: “waters of the United States.” Wetlands
are “waters of the United States” if they bear the “significant
nexus” of physical connection, which makes them as a practical
matter
indistinguishable from waters of the United States.
What other nexus could
conceivably cause them to
be “waters of the United States”? Justice Kennedy’s test
is that they, “either alone or in combination with similarly
situated lands in the region, significantly
affect the
chemical, physical, and biological integrity of other covered
waters more readily understood as ‘navigable,’ ”
post, at 23 (emphasis added). But what possible linguistic
usage would accept that whatever (alone or in combination)
affects waters of the United States
is waters of
the United States?
Only by ignoring the text of the statute and
by assuming that the phrase of
SWANCC (“significant
nexus”) can properly be interpreted in isolation from that text
does Justice Kennedy reach the conclusion he has arrived at.
Instead of limiting its meaning by reference to the text it was
applying, he purports to do so by reference to what he calls the
“purpose” of the statute. Its purpose is to clean up the waters of
the United States, and therefore anything that might “significantly
affect” the purity of those waters bears a “significant nexus” to
those waters, and thus (he never says this, but the text of the
statute demands that he mean it)
is those waters. This is
the familiar tactic of substituting the purpose of the statute for
its text, freeing the Court to write a different statute that
achieves the same purpose. To begin with, as we have discussed
earlier, clean water is not the
only purpose of the
statute. So is the preservation of primary state responsibility for
ordinary land-use decisions. 33 U. S. C. §1251(b). Justice
Kennedy’s test takes no account of this purpose. More
fundamentally, however, the test simply rewrites the statute, using
for that purpose the gimmick of “significant nexus.” It would have
been an easy matter for Congress to give the Corps jurisdiction
over all wetlands (or, for that matter, all dry lands) that
“significantly affect the chemical, physical, and biological
integrity of ” waters of the United States. It did not do
that, but instead explicitly limited jurisdiction to “waters of the
United States.”
Justice Kennedy’s disposition would disallow
some of the Corps’ excesses, and in that respect is a more moderate
flouting of statutory command than Justice Stevens’.[
Footnote 15] In another respect, however,
it is more extreme. At least Justice Stevens can blame his
implausible reading of the statute upon the Corps. His error
consists of giving that agency more deference than reason permits.
Justice Kennedy, however, has devised his new statute all on his
own. It purports to be, not a grudging acceptance of an agency’s
close-to-the-edge expansion of its own powers, but rather
the most reasonable interpretation of the law. It is far
from that, unless whatever affects waters is waters.
VIII
Because the Sixth Circuit applied
the wrong standard to determine if these wetlands are covered
“waters of the United States,” and because of the paucity of the
record in both of these cases, the lower courts should determine,
in the first instance, whether the ditches or drains near each
wetland are “waters” in the ordinary sense of containing a
relatively permanent flow; and (if they are) whether the wetlands
in question are “adjacent” to these “waters” in the sense of
possessing a continuous surface connection that creates the
boundary-drawing problem we addressed in
Riverside
Bayview.
* * *
We vacate the judgments of the
Sixth Circuit in both No. 04–1034 and No. 04–1384, and remand both
cases for further proceedings.
It is so ordered.
Footnote 1
In issuing permits, the Corps directs
that “[a]ll factors which may be relevant to the proposal must be
considered including the cumulative effects thereof: among those
are conservation, economics, aesthetics, general environmental
concerns, wetlands, historic properties, fish and wildlife values,
flood hazards, floodplain values, land use, navigation, shore
erosion and accretion, recreation, water supply and conservation,
water quality, energy needs, safety, food and fiber production,
mineral needs, considerations of property ownership and, in
general, the needs and welfare of the people.” §320.4(a).
Footnote 2
We are indebted to the Sonoran court
for a famous exchange, from the movie Casablanca (Warner Bros.
1942), which portrays most vividly the absurdity of finding the
desert filled with waters:
“ ‘Captain Renault [Claude Rains]: “What in heaven’s name
brought you to Casablanca?”
“ ‘Rick [Humphrey Bogart]: “My health. I came to Casablanca
for the waters.”
“ ‘Captain Renault: “The waters? What waters? We’re in the
desert.”
“ ‘Rick: “I was misinformed.’ ” 408 F. 3d, at
1117.
Footnote 3
One possibility, which we ultimately find
unsatisfactory, is that the “other” waters covered by 33 U.
S. C. §1344(g)(1) are strictly
intrastate waters that
are traditionally navigable. But it would be unreasonable to
interpret “the waters of the United States” to include all and only
traditional navigable waters, both interstate and intrastate. This
would preserve the traditional import of the qualifier “navigable”
in the
defined term “navigable waters,” at the cost of
depriving the qualifier “of the United States”
in the
definition of all meaning. As traditionally understood,
the latter qualifier excludes intrastate waters, whether navigable
or not. See
The Daniel Ball, 10 Wall. 557, 563 (1871). In
SWANCC, we held that “navigable” retained something of its
traditional import. 531 U. S., at 172.
A fortiori, the
phrase “of the United States” in the definition retains some of its
traditional meaning.
Footnote 4
Justice Kennedy observes,
post, at
13 (opinion concurring in judgment), that the dictionary approves
an alternative, somewhat poetic usage of “waters” as connoting “[a]
flood or inundation; as the
waters have fallen. ‘The peril
of
waters, wind, and rocks.’
Shak.” Webster’s
Second 2882. It seems to us wholly unreasonable to interpret the
statute as regulating only “floods” and “inundations” rather than
traditional waterways—and strange to suppose that Congress had
waxed Shakespearean in the definition section of an otherwise
prosaic, indeed downright tedious, statute. The duller and more
commonplace meaning is obviously intended.
Footnote 5
By describing “waters” as “relatively
permanent,” we do not necessarily exclude streams, rivers, or lakes
that might dry up in extraordinary circumstances, such as drought.
We also do not necessarily exclude
seasonal rivers, which
contain continuous flow during some months of the year but no flow
during dry months—such as the 290-day, continuously flowing stream
postulated by Justice Stevens’ dissent (hereinafter the dissent),
post, at 15. Common sense and common usage distinguish
between a wash and seasonal river.
Though scientifically precise distinctions
between “perennial” and “intermittent” flows are no doubt
available, see,
e.g., Dept. of Interior, U. S. Geological
Survey, E. Hedman & W. Osterkamp, Streamflow Characteristics
Related to Channel Geometry of Streams in Western United States 15
(1982) (Water-Supply Paper 2193), we have no occasion in this
litigation to decide exactly when the drying-up of a stream bed is
continuous and frequent enough to disqualify the channel as a
“wate[r] of the United States.” It suffices for present purposes
that channels containing permanent flow are plainly within the
definition, and that the dissent’s “intermittent” and “ephemeral”
streams,
post, at 16 (opinion of Stevens, J.)—that is,
streams whose flow is “[c]oming and going at intervals … [b]roken,
fitful,” Webster’s Second 1296, or “existing only, or no longer
than, a day; diurnal … short-lived,”
id., at 857—are
not.
Footnote 6
The principal definition of “stream” likewise
includes reference to such permanent, geographically fixed bodies
of water: “[a] current or course of water or other fluid, flowing
on the earth, as a
river, brook, etc.”
Id., at
2493 (emphasis added). The other definitions of “stream” repeatedly
emphasize the requirement of
continuous flow: “[a]
steady flow, as of water, air, gas, or the like”;
“[a]nything issuing or moving with
continued succession of
parts”; “[a]
continued current or course; current; drift.”
Ibid. (emphases added). The definition of the verb form of
“stream” contains a similar emphasis on continuity: “[t]o issue or
flow in a stream; to issue freely or move in a
continuous flow
or course.”
Ibid. (emphasis added). On these
definitions, therefore, the Corps’ phrases “intermittent streams,”
33 CFR §328.3(a)(3) (2004), and “ephemeral streams,” 65 Fed. Reg.
12823 (2000), are—like Senator Bentsen’s “ ‘ flowing
gullies,’ ”
post, at 16, n. 11 (opinion of
Stevens, J.)—useful oxymora. Properly speaking, such entities
constitute extant “streams” only while they are “continuous[ly]
flow[ing]”; and the usually dry channels that contain them are
never “streams.” Justice Kennedy apparently concedes that “an
intermittent flow can constitute a stream” only “
while it is
flowing,”
post, at 13 (emphasis added)—which would
mean that the channel is a “water” covered by the Act only during
those times when water flow actually occurs. But no one contends
that federal jurisdiction appears and evaporates along with the
water in such regularly dry channels.
Footnote 7
It is of course true, as the dissent and
Justice Kennedy both observe, that ditches, channels, conduits and
the like “can all hold water permanently as well as
intermittently,”
post, at 17 (opinion of Stevens, J.); see
also
post, at 14–15 (opinion of Kennedy, J.). But when
they do, we usually refer to them as “rivers,” “creeks,” or
“streams.” A permanently flooded ditch around a castle is
technically a “ditch,” but (because it is permanently filled with
water) we normally describe it as a “moat.” See Webster’s Second
1575. And a permanently flooded man-made ditch used for navigation
is normally described, not as a “ditch,” but as a “canal.” See
id., at 388. Likewise, an open channel through which water
permanently flows is ordinarily described as a “stream,” not as a
“channel,” because of the continuous presence of water. This
distinction is particularly apt in the context of a statute
regulating
water quality, rather than (for example) the
shape of stream beds. Cf.
Jennison v.
Kirk,
98 U. S. 453,
454–456 (1879) (referring to man-made channels as “ditches” when
the alleged injury arose from physical damage to the
banks
of the ditch);
PUD No. 1 of Jefferson Cty. v.
Washington Dept. of Ecology,
511 U. S. 700, 709
(1994) (referring to a water-filled tube as a “tunnel” in order to
describe the
shape of the conveyance, not the fact that it
was water-filled), both cited
post, at 17, n. 12
(opinion of Stevens, J.). On its only natural reading, such a
statute that treats “waters” separately from “ditch[es],
channel[s], tunnel[s], and conduit[s],” thereby distinguishes
between continuously flowing “waters” and channels containing only
an occasional or intermittent flow.
It is also true that highly artificial,
manufactured, enclosed conveyance systems—such as “sewage treatment
plants,”
post, at 15 (opinion of Kennedy, J.), and the
“mains, pipes, hydrants, machinery, buildings, and other
appurtenances and incidents” of the city of Knoxville’s “system of
waterworks,”
Knoxville Water Co. v.
Knoxville,
200 U. S. 22, 27
(1906), cited
post, at 17, n. 12 (opinion of Stevens,
J.)—likely do not qualify as “waters of the United States,” despite
the fact that they may contain continuous flows of water. See
post, at 15 (opinion of Kennedy, J.);
post, at
17, n. 12 (opinion of Stevens, J.). But this does not
contradict our interpretation, which asserts that relatively
continuous flow is a
necessary condition for qualification
as a “water,” not an
adequate condition. Just as ordinary
usage does not treat typically dry beds as “waters,” so also it
does not treat such elaborate, man-made, enclosed systems as
“waters” on a par with “streams,” “rivers,” and “oceans.”
Footnote 8
Justice Kennedy contends that the Corps’
preservation of the “responsibilities and rights” of the States is
adequately demonstrated by the fact that “33 States and the
District of Columbia have filed an
amici brief in this
litigation” in favor of the Corps’ interpretation,
post,
at 20. But it makes no difference to the
statute’s stated
purpose of preserving States’ “rights and responsibilities,”
§1251(b), that some States wish to unburden themselves of them.
Legislative and executive officers of the States may be content to
leave “responsibilit[y]” with the Corps because it is attractive to
shift to another entity controversial decisions disputed between
politically powerful, rival interests. That, however, is not what
the statute provides.
Footnote 9
Justice Kennedy objects that our reliance on
these two clear-statement rules is inappropriate because “the
plurality’s interpretation does not fit the avoidance concerns that
it raises,”
post, at 19—that is, because our resolution
both eliminates some jurisdiction that is clearly constitutional
and traditionally federal, and retains some that is questionably
constitutional and traditionally local. But a clear-statement rule
can carry one only so far as the statutory text permits. Our
resolution, unlike Justice Kennedy’s, keeps both the overinclusion
and the underinclusion to the minimum consistent with the statutory
text. Justice Kennedy’s reading—despite disregarding the text—fares
no better than ours as a precise “fit” for the “avoidance concerns”
that he also acknowledges. He admits,
post, at 25, that
“the significant nexus requirement may not align perfectly with the
traditional extent of federal authority” over navigable waters—an
admission that “tests the limits of understatement,”
Gonzales v.
Oregon, 126 S. Ct. 904, 932
(2005) (Scalia, J., dissenting)—and it aligns even worse with the
preservation of traditional state land-use regulation.
Footnote 10
Since the wetlands at issue in
Riverside
Bayview actually abutted waters of the United States, the case
could not possibly have held that merely “neighboring” wetlands
came within the Corps’ jurisdiction.
Obiter approval of
that proposition might be inferred, however, from the opinion’s
quotation without comment of a statement by the Corps describing
covered “adjacent” wetlands as those “ ‘that form the border
of
or are in reasonable proximity to other waters of the
United States.’ ” 474 U. S., at 134 (quoting 42 Fed. Reg.
37128 (1977); emphasis added). The opinion immediately reiterated,
however, that adjacent wetlands could be regarded as “the waters of
the United States” in view of “the inherent difficulties of
defining precise bounds to regulable waters,” 474 U. S., at 134—a
rationale that would have no application to physically separated
“neighboring” wetlands. Given that the wetlands at issue in
Riverside Bayview themselves “actually abut[ted] on a
navigable waterway,”
id., at 135; given that our opinion
recognized that unconnected wetlands could not naturally be
characterized as “ ‘waters’ ” at all,
id., at
132; and given the repeated reference to the difficulty of
determining where waters end and wetlands begin; the most natural
reading of the opinion is that a wetlands’ mere “reasonable
proximity” to waters of the United States is not enough to confer
Corps jurisdiction. In any event, as discussed in our immediately
following text, any possible ambiguity has been eliminated by
SWANCC, 531 U. S. 159 (2001).
Footnote 11
The dissent argues that “the very existence
of words like ‘alluvium’ and ‘silt’ in our language suggests that
at least some [dredged or fill material] makes its way downstream,”
post, at 22 (citation omitted). See also
post, at
17 (opinion of Kennedy, J.). By contrast,
amici cite
multiple empirical analyses that contradict the dissent’s
philological approach to sediment erosion—including one which
concludes that “[t]he idea that the discharge of dredged or fill
material into isolated waters, ephemeral drains or non-tidal
ditches will pollute navigable waters located any appreciable
distance from them lacks credibility.” R. Pierce, Technical
Principles Related to Establishing the Limits of Jurisdiction for
Section 404 of the Clean Water Act 34–40 (Apr. 2003), available at
www.wetlandtraining.com/tpreljscwa.pdf, cited in Brief for
International Council of Shopping Centers et al. as
Amici
Curiae 26–27; Brief for Pulte Homes, Inc., et al. as
Amici Curiae 20–21; Brief for Foundation for Environmental
and Economic Progress et al. as
Amici Curiae 29, and
n. 53 (“Fill material does not migrate”). Such scientific analysis
is entirely unnecessary, however, to reach the unremarkable
conclusion that the deposit of
mobile pollutants into
upstream ephemeral channels is naturally described as an “addition
… to navigable waters,” 33 U. S. C. §1362(12), while the
deposit of
stationary fill material generally is not.
Footnote 12
Nor does the passing reference to “wetlands
adjacent thereto” in §1344(g)(1) purport to expand that statutory
definition. As the dissent concedes,
post, at 20, that
reference merely confirms that the statutory definition can be read
to include
some wetlands—namely, those that directly
“abut” covered waters.
Riverside Bayview explicitly
acknowledged that §1344(g)(1) “does not conclusively determine the
construction to be placed on the use of the term ‘waters’ elsewhere
in the Act
(particularly in [§1362(7)], which contains the
relevant definition of ‘navigable waters’); however, … it does
at least suggest strongly that the term ‘waters’ as used in the Act
does not necessarily exclude ‘wetlands.’ ” 474 U. S.,
at 138, n. 11 (emphases added).
Footnote 13
The sole exception is in Justice Kennedy’s
opinion, which argues that
Riverside Bayview rejected our
physical-connection requirement by accepting as a given that
any wetland formed by inundation from covered waters
(whether or not continuously connected to them) is covered by the
Act: “The Court in
Riverside Bayview … did not suggest
that a flood-based origin would not support jurisdiction; indeed,
it presumed the opposite. See 474 U. S., at 134 (noting that the
Corps’ view was valid ‘
even for wetlands that are not the
result of flooding or permeation’ (emphasis added)).”
Post, at 16. Of course Justice Kennedy himself fails to
observe this supposed presumption, since his “significant nexus”
test makes no exception for wetlands created by inundation. In any
event, the language from
Riverside Bayview in Justice
Kennedy’s parenthetical is wrenched out of context. The sentence
which Justice Kennedy quotes in part immediately followed the
Court’s conclusion that “adjacent” wetlands are included because of
“the inherent difficulties of defining precise bounds to regulable
waters,” 474 U. S., at 134. And the full sentence reads as follows:
“This holds true even for wetlands that are not the result of
flooding or permeation by water having its source in
adjacent bodies of open water,”
ibid. (emphasis
added). Clearly, the “wetlands” referred to in the sentence are
only “adjacent” wetlands—namely, those with the continuous physical
connection that the rest of the
Riverside Bayview opinion
required, see
supra, at 21–23. Thus, it is evident that
the quoted language was not at all a rejection of the
physical-connection requirement, but rather a rejection of the
alternative position (which had been adopted by the lower court in
that case, see
id., at 125) that the
only covered
wetlands are those created by inundation. As long as the wetland is
“adjacent” to covered waters, said
Riverside Bayview, its
creation
vel non by inundation is irrelevant.
Footnote 14
The allusion is to a classic story told in
different forms and attributed to various authors. See,
e.g., Geertz, Thick Description: Toward an Interpretive
Theory of Culture, in The Interpretation of Cultures 28–29 (1973).
In our favored version, an Eastern guru affirms that the earth is
supported on the back of a tiger. When asked what supports the
tiger, he says it stands upon an elephant; and when asked what
supports the elephant he says it is a giant turtle. When asked,
finally, what supports the giant turtle, he is briefly taken aback,
but quickly replies “Ah, after that it is turtles all the way
down.”
Footnote 15
It is unclear
how much more moderate
the flouting is, since Justice Kennedy’s “significant nexus”
standard is perfectly opaque. When, exactly, does a wetland
“significantly affect” covered waters, and when are its effects “in
contrast … speculative or insubstantial”?
Post, at 23.
Justice Kennedy does not tell us clearly—except to suggest,
post, at 25, that “ ‘ “isolated” is generally a
matter of degree’ ” (quoting Leibowitz & Nadeau, Isolated
Wetlands: State-of-the-Science and Future Directions, 23 Wetlands
663, 669 (2003)). As the dissent hopefully observes,
post,
at 24, such an unverifiable standard is not likely to constrain an
agency whose disregard for the statutory language has been so long
manifested. In fact, by stating that “[i]n both the consolidated
cases before the Court the record contains evidence suggesting the
possible existence of a significant nexus according to the
principles outlined above,”
post, at 26, Justice Kennedy
tips a wink at the agency, inviting it to try its same expansive
reading again.
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