The EPA Is Stopped at the Water’s Edge

Chief Justice John Marshall famously described the job of the courts: to “say what the law is.” The courts are supposed to read the law, not write it. Sometimes, however, the written law leaves much unanswered. At a certain point, while it is important that the Supreme Court adhere to the text written by Congress, it is even more important that it settle on an answer that tells Americans what the law is, and what it is not. That is what the Court did on Thursday in Sackett v. EPA.

The Clean Water Act (CWA), enacted in 1972, aimed to clean up the nation’s “navigable waters” by prohibiting “the discharge of any pollutant” into those waters and placing them under the dual enforcement jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers. While it could have rested on the traditionally familiar definition of “navigable waters” developed in more than a century of court decisions dating back to Marshall’s time, Congress chose to more specifically (it thought) define them as “the waters of the United States, including the territorial seas” — WOTUS, in bureaucratic parlance. An awkwardly written 1977 amendment involving permits indicated that WOTUS should be read, at least in some cases, as “including wetlands adjacent thereto.”

History and common sense would suggest that, while Congress was trying to catch bodies of water flowing into the nation’s navigable waters, it never intended to completely abolish the connection between the regulated waters and a navigable body of water such as “the territorial seas.” To do so would read multiple words completely out of the statute, including the crucial term “navigable.” It would also conflict with the use of “waters” throughout the CWA to refer to traditional bodies of navigable water.