United States v. Riverside Bayview Homes

Secondary Discussion Question 9

(9) From the point of view of reading the language of a statute and interpreting what it means, isn’t this an absurd case?

(a)  The Court allows the Corps to act as if Congress intended the word "waters" to include portions of the surface of the Earth that we call "land." Aren’t "land" and "water" opposites?

(b)  Additionally, even if the lands at issue in the case are treated as waters, the statutory language of the Clean Water Act requires permits for the discharge of pollutants into "navigable waters." Yet, according to page 123 of the option, the Corps’ 1975 regulation includes "not only navigable waters." If it includes something beyond navigable waters, it must include some non-navigable waters, mustn’t it? And surely navigable waters and non-navigable waters are opposites, aren’t they?

(c)  While we’re at it, how is it that "fill" is a "pollutant" at all? Isn’t "fill" just a fancy name for "dirt"? What could be more natural than dirt?


This is a rhetorical question in more than one meaning of the phrase.  It is a question about language--that is, rhetoric.  It is also a question in which, to some extent, the questioner doesn't appear to want answers to the questions, but wishes simply to have you consider the questions and be instantly persuaded as to the implicit force of the arguments underlying their very formulation.

Nonetheless, there are some genuine answers that one might generate to the questions posed above. 

(a)  The Court allows the Corps to act as if Congress intended the word "waters" to include portions of the surface of the Earth that we call "land." Aren’t "land" and "water" opposites? 

It is true that "land" and "water" are commonly conceived as opposites.  But this is a case about "wetlands," a word that inherently combines both land and water (wetness) in its very description.  

Note also that, if you are trying to emphasize the land-ness of something, you in fact typically call it "dry land," and not just "land."  (For evidence that for some people is about as far back as you can go, see Genesis 1:10, "And God called the dry land Earth; and the gathering together of the waters called he Seas: and God saw that it was good" (emphasis added).  For secular evidence of much more recent origin, see the title of the computer game flowing from Kevin Costner's big-screen debacle: Waterworld: The Quest for Dry Land.)  And "wet lands" would seem in some sense the opposite of "dry lands."

Note also that the Court is aware of this potential linguistic tension, and adopts the view that drawing a line between land and water can be tricky even if land and water are in some cases diametric opposites:

"On a purely linguistic level, it may appear unreasonable to classify 'lands,' wet or otherwise, as 'waters.' Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, 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. 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."   474 U.S. at 132.

(b)  Additionally, even if the lands at issue in the case are treated as waters, the statutory language of the Clean Water Act requires permits for the discharge of pollutants into "navigable waters." Yet, according to page 123 of the option, the Corps’ 1975 regulation includes "not only navigable waters." If it includes something beyond navigable waters, it must include some non-navigable waters, mustn’t it? And surely navigable waters and non-navigable waters are opposites, aren’t they?

The problem with the assumptions underlying this question, appealing and logical though it may seem, is that Congress used the phrase "the navigable waters" in section 404(a) of the Act but then defined "navigable waters" as "the waters of the United States, including the Territorial seas" in section 502(7) of the Act. 

Now, whenever one thing is defined as another, the apparent meaning of the pre-defined phrase is presumably altered by the definition.  Often we think of definitions as narrowing and clarifying.  Nonetheless, definitions may also broaden. 

In this instance, "the waters of the United States" in fact appears to be a much broader concept than "navigable waters."  If there were a lot of navigable waters that were not waters of the United States--as might be the case if a lot of navigable waters belonged exclusively to the States in their individual capacities--then "the waters of the United States" might be a narrower concept than "navigable waters."  But the Commerce-Clause power of the Congress has been construed so broadly that effectively all navigable waters aresure to be waters of the United States--that is, regulable by federal authorities.  "Navigable waters" thus effectively means "navigable waters of the United States," so talking about just "the waters of the United States" thus broadens the definition from "navigable waters of the United States" to something like "all navigable waters and some non-navigable waters of the United States."   So the Corps was on perfectly solid ground (so to speak) when it issued regulations that included some non-navigable waters as wetlands.

(c)  While we’re at it, how is it that "fill" is a "pollutant" at all? Isn’t "fill" just a fancy name for "dirt"? What could be more natural than dirt?

First, the relevant statute clearly states that a permit is required for any discharge of "dredged or fill materials."  The statute thus treats fill as a pollutant--a special kind of pollutant with respect to which the Corps has initial jurisdiction, rather than giving exclusive jurisdiction to the EPA as is typically the case in the statute, but a pollutant nonetheless.  So Congress has clearly made up its mind about what fill is, regardless of what some people might think dirt is. 

Second, dirt can in fact harm aquatic ecosystems just as other pollutants can.   Dirt can reduce the depth to which sunlight penetrates water and thus harm the prospects of, among other things, photosynthetic organisms in the water.  Dirt can reduce visibility and thus harm the prospects of animals that use their vision to locate prey.

Third, lots of perfectly "natural" substances besides dirt can harm ecosystems, so saying that something is "natural" is not strong grounds for inferring that something is harmless.  In aquatic environments, for example, entirely natural organic wastes can lead to great ecological stress when the bacteria that consume such wastes multiply rapidly and then deplete stores of oxygen in the water.  In the atmosphere, carbon dioxide is a perfectly natural product of plant and animal respiration, but excessive amounts of carbon dioxide produced by the burnings of fossil fuels will almost certainly contribute to significant global warming.


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This page was last updated on 03/10/99.