“Waters of the United States” and the Void-for-Vagueness Doctrine

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“Waters of the United States” and the Void-for-Vagueness Doctrine

April 26, 2023 About an hour read Download Report
Paul Larkin
Rumpel Senior Legal Research Fellow
Paul is a Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.


Congress’s decision to use “the waters of the United States” to define the reach of the Clean Wa-ter Act has led to confusion about precisely which bodies of water qualify: How, exactly, should that term be applied to the various bodies of water and parcels of land that the EPA and Army Corps of Engineers claim are covered by the act? No one—especially no one lacking relevant legal or scientific education and training—should be at risk of criminal prosecution for mistakenly de-ciding that a particular geographic site meets the agencies’ possibly ever-changing definition. The Supreme Court has several options regarding how to ensure that the average person does not wind up imprisoned for making a reasonable mistake.

Key Takeaways

The Void-for-Vagueness Doctrine bars using a criminal law to enforce a statute that no reasonable person can understand or apply.

The term “waters of the United States” is unconstitutionally vague, and federal rules only aggravate the problem.

One way for the Supreme Court to remedy this error is by foreclosing criminal prosecutions.

Congress passed the Federal Water Pollution Control Act Amendments of 1972—colloquially known as the Clean Water Act (CWA)—to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”REF To do so, the CWA requires parties to obtain a permit before discharging a pollutant into “navigable waters.”REF The CWA defines the term “navigable waters” as “the waters of the United States.”REF Unpermitted discharges are subject to administrative and civil penalties as well as criminal punishments.REF

Congress’s decision to use the term “the waters of the United States” to define the reach of the CWA has led to confusion about precisely which bodies of water qualify. The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) attempted to clarify the meaning of that term through rulemaking. In 2015, they adopted a regulation known as the “Waters of the United States” or WOTUS Rule, but that will not remedy the problem. The reason why is threefold: (1) principles of statutory interpretation require that an act of Congress receive a uniform interpretation, regardless of whether the law is invoked in an administrative, civil, or criminal case; (2) the Void-for-Vagueness Doctrine bars the government from prosecuting someone for violating a law the terms of which are so indistinct that no reasonable person could understand what is forbidden; and (3) while it is doubtful that an agency can remedy an unconstitutionally vague law through rulemaking, the WOTUS Rule definition of “waters of the United States” makes it impossible for the average person to understand precisely what that term means.

This Legal Memorandum will explain why each proposition is true and will offer several remedies that do not require that the CWA be held unconstitutional in its entirety.REF

The Proper Interpretation of a Statute That Can Be Enforced by an Administrative or Civil Action and a Criminal Prosecution

Contemporary statutes like the CWA offer the government different enforcement options, including criminal prosecution, and the U.S. Department of Justice has been quite willing to bring criminal charges against anyone who violates the CWA.REF The possibility that a person can be charged with a crime has two implications for statutory interpretation.

The first one follows from the well-settled canon of construction known as the Rule of Lenity. That canon requires courts strictly to construe the terms of a criminal law to avoid creating traps for law-abiding parties.REF Borrowing from the rules of baseball, the Rule of Lenity demands that courts must give an accused the benefit of the doubt whenever the meaning of a criminal statute is in equipoise.REF In baseball, a tie goes to the runner; here, it goes to the public.

The second consequence is that, to ensure that a statute is given a consistent interpretation of its provisions regardless of the relief sought, courts must give that law the same construction in civil and criminal cases, a canon that I have referred to as the Rule of Consistency.REF Under that rule, “courts cannot create one law for Athens (civil cases) and another one for Rome (criminal cases).”REF As Justice Antonin Scalia put it, “the lowest common denominator, as it were, must govern.”REF Or, as Justice Neil Gorsuch put it more recently, “the rule of lenity, not to mention a dose of common sense, favors a strict construction.”REF

Unfortunately, the Supreme Court of the United States has never recognized that those rules apply to the CWA just as they apply to other regulatory schemes that can be enforced through criminal prosecutions. Rapanos v. United States is the most important decision in that regard.REF Justice Scalia defined “waters of the United States” as referring only to relatively permanent standing or flowing bodies of water,REF to include “wetlands”—viz., adjacent, flooded, but non-navigable water bodies—only if they have a continuous surface connection to traditional “waters of the United States.”REF That reading is narrower than the act’s broad purposes would allow but not as narrow as required by the Rules of Lenity and Consistency. In any event, Justice Scalia’s opinion garnered only three other votes.

Justice Anthony Kennedy provided the fifth vote necessary for a majority, but he only concurred in the judgment because he disagreed with the plurality’s construction of the term “waters of the United States.” In his view, the issue whether a particular body of water or parcel of land qualifies turns on whether there is a “significant nexus” between it and a traditional navigable water.REF He found support for that test in two of the Court’s CWA precedents,REF which he said implicitly or explicitly adverted to a “substantial nexus” test.REF Yet neither of those decisions was a criminal prosecution, and neither one discussed how the Rules of Lenity and Consistency apply to the CWA.REF In fact, one of those cases, Riverside Bayview Homes, could not have addressed the Rule of Consistency because the Court did not first clearly articulate that rule until seven years after it had decided Riverside Bayview Homes. The result was that Rapanos brought only confusion to the meaning of “waters of the United States.”REF

Fortunately, the Supreme Court now has an opportunity to remedy this problem. The Court granted certiorari in Sackett v. EPA to decide how to interpret the term “waters of the United States.”REF We might have a decision before the Court recesses this summer.

Yet there is a closely related issue that, hopefully, the Supreme Court will also address: namely, whether the statutory definition of “navigable waters” as “waters of the United States” is so amorphous as to defy any reasonable attempt either to understand its contours or to apply it when the issue arises not in a classroom or courtroom, but in the real world when people must decide whether they are breaking the law. In that regard, there is another body of law that is critical to understanding how a statute like the CWA should be written: the Void-for Vagueness Doctrine.

The Void-for-Vagueness Doctrine

Language uses words rather than mathematical symbols to convey ideas or commands, so there is an inevitable risk of uncertainty in what either one can mean. Words generally have a core, readily distinct dictionary meaning capable of common understanding. That is why we start any exercise in statutory interpretation by focusing on the text of a written law,REF using the presumption that words in a statute mean what they ordinarily mean to the average person—that is, how they are defined in an English-language dictionary.REF Once we attempt to expand a term beyond its average, everyday meaning, however, as government sometimes is wont to do, the risk of uncertainly expands geometrically.REF That almost always is the case when we decide “to boldly go” where no reasonable person has gone before.REF

In criminal cases, we limit that risk through judicious application of the canon of construction known as the Rule of Lenity, a directive to courts to eschew imaginative readings of criminal statutes just to snare tawdry conduct. The goal is to force Congress to use words with precision; the hope is to avoid tripping up morally innocent parties. Those purposes are especially important when the criminal law provides the hammer for breaking a rule. The injunction to “do the right thing” might be a valuable ethical precept, but it can’t be adopted as a legal command, enforced by the criminal law. The reason is that the variety of interpretations that such an exhortation can have today in our contemporary, heterogenous society—some interpretations “woke,” others reasonable—which lacks a commonly held set of moral virtues makes it impossible for a person to know with certainty just what “right thing” the law commands him to do. The different possible interpretations of that injunction render it little better than advice. It certainly is not adequate to serve as a command backed by the possibility of imprisonment for noncompliance.

Here is where the Constitution comes into play. The Due Process Clauses forbid the federal and state governments from punishing someone without first affording him or her “due process of law,”REF and, as Justice Neil Gorsuch explained in United States v. Davis, “[in] our constitutional order, a vague law is no law at all.”REF To condemn and punish conduct as criminal, a statute must afford “ordinary people”REF fair notice of what the law makes a crime.REF A criminal law falls short of that standard when its text “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application”REF or its “mandates are so uncertain that they will reasonably admit of different constructions.”REF Those are fatal flaws in any criminal law.

The terms “ordinary people,” people of “common intelligence,”REF people of “ordinary intelligence,”REF or “‘the common world’”REF are critical in this regard. They define what hurdle the law must satisfy to be sufficiently understandable to constitute a predicate for criminal liability and how we decide where that hurdle should be placed. The standard should focus the inquiry on how the average lay person would read a statute—not the average expert, whether that individual be a hydrologist, botanist, geologist, lawyer, or specialist in some other field. Why? The standard reflects both the moral judgment that the criminal law should not favor the illuminati and the empirical fact that few people qualify as members of the intelligentsia.

In the United States, a majority of the nation—“ordinary people” or people of “common intelligence”—have only a high school diploma, not the advanced, specialized education and training that the above experts possess.REF Physicians and nurses know more about medicine than medics or EMTs, and textbooks are written with those different audiences in mind. Statutes, however, must focus on the last two groups as well as people who don’t even know basic first-aid. Otherwise, we have made it a crime not to have an MD, PhD, JD, or some other letters followed by a D after one’s name.REF Demographics therefore matter when deciding whether a law is sufficiently clear that it may be enforced through a criminal prosecution.

The Fatal Indeterminacy of the Meaning of “Waters of the United States”

Recognizing that the term “waters of the United States” needed to be clarified, the EPA and Army Corps adopted the WOTUS Rule in 2015 in the stated hope of “providing simpler, clearer, and more consistent approaches for identifying the geographic scope of the CWA.”REF Relying on the “significant nexus” test that Justice Kennedy proposed in his separate opinion in Rapanos,REF the agencies concluded that the CWA embraced any body of water, regardless of its usefulness for navigation, that could “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”REF EPA and the Army Corps concluded that “[t]his final rule interprets the CWA to cover those waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas.”REF

Despite the fact that the text of the CWA is limited to “navigable waters,” throughout their WOTUS Rule, the agencies focused on the possibility of pollution rather than the actuality of navigability. That mistaken emphasis is fatal if the question is whether individuals of “common intelligence” can understand the law and science and apply the rule to whatever body of water or parcel of land is in front of them. The WOTUS Rule is therefore unconstitutionally vague.

First, it is highly dubious that an agency, through rulemaking, can cure an unconstitutionally vague statute.REF In Whitman v. American Trucking Association, the Supreme Court held that for delegation purposes, an agency cannot by rule “cure an unconstitutionally standardless delegation of power by declining to exercise some of” it.REF In United States v. Davis, the Court emphasized that from “the twin constitutional pillars of due process and separation of powers,” it follows that “[o]nly the people’s representatives in Congress have the power to write new federal criminal laws.”REF Accordingly, the burden of providing clarity falls to Congress: “it has to write statutes that give ordinary people fair warning about what the law demands of them.”REF American Trucking and Davis could and should bar Congress from punting to an agency the task of curing a vague criminal law.REF The Supreme Court should leave to Congress the responsibility to correct its own mistakes.REF

Second, in any event, the EPA–Army Corps Rule further complicates the already vague meaning of “waters of the United States.”

The EPA and Army Corps acknowledged that under Rapanos, almost any body of water and any parcel of land could qualify as a “water of the United States” if it is wet at some time.REF To clarify that term while protecting against pollution, the agencies relied on “the best available peer-reviewed science” to define its breadth, despite the difficulty that even scientific experts might have deciding, for example, what is a “wetland.”REF The agencies listed certain conclusions that “play[ed] a critical role in informing” their interpretation of the CWA:

Waters are connected in myriad ways, including physical connections and the hydrologic cycle; however, connections occur on a continuum or gradient from highly connected to highly isolated.
These variations in the degree of connectivity are a critical consideration in assessing the ecological integrity and sustainability of downstream waters.
The critical contribution of upstream waters to the chemical, physical, and biological integrity of downstream waters results from the accumulative contribution of similar waters in the same watershed and in the context of their functions considered over time.REF

The agencies then offered a lengthy discussion of the “substantial nexus” test. They explained at length why various water bodies—tributaries, streams, “adjacent” waters, waters within the once-in-a-century floodplain of a navigable water, and so forth—were “navigable waters.” Some characteristics of water—or land, like “wetlands,” which are flooded plains—make them “navigable waters” as a matter of law, while others might be so classified based on a host of different factors in each case.REF In addition, interruptions caused by natural or man-made breaksREF do not necessarily exempt a water or land body from the WOTUS Rule.REF Also, no one location can be examined in isolation. An entire watershed must be considered because, regardless of one location’s size, each river or stream can affect every other one in a watershed.REF Finally, because the boundaries of a watershed can vary from year to year, the agencies’ finding that a particular body of water or parcel of land is covered or not by the CWA also can change over time.REF Ordinarily, a private party is entitled to rely on regulations as a basis for learning what the government deems lawful versus illegal conduct and cannot be prosecuted for past actions if the government later changes its mind. The Fifth Amendment Due Process Clause guarantees a right to such reliance,REF and the EPA and Army Corps apparently decided to exempt themselves from that demand.

The uncertainty built into the WOTUS Rule, along with the agencies’ explanation with respect to why they adopted that rule and what it means, is enough to make the average person throw up his hands at the impossibility of ever understanding what it means. (Perhaps that was part of the reason why the agencies wrote that rule and its justifications.) But there is more.

To complicate the matter further, the Army Corps has a Wetlands Delineation Manual, containing “over 100 pages of technical guidance for Corps’ officers.”REF Not to be outdone, to assist in the 2015 rulemaking, EPA published its own report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,REF a document of more than 400 pages prepared by “27 technical experts in an array of relevant fields, including hydrology, wetland and stream ecology, biology, geomorphology, biogeochemistry, and freshwater science,” that analyzed “more than 1,200 peer-reviewed publications” and “[o]ver 133,000 public comments.”REF That’s a lot of material not found in the text of the statute that someone must find, read, digest, understand, and apply correctly to avoid being charged with a crime.

Are we done yet? No. There’s more.

In a manner akin to shooting the survivors—that is, to confuse anyone who is able to understand what all of the above means and how to apply it—the government has further obfuscated the definition of “waters of the United States” in the manner by which it has applied its “significant nexus” test. The agencies “utilize many tools and many sources of information to help make jurisdictional determinations,” such as “U.S. Geological Survey (USGS) and state and local topographic maps, aerial photography, soil surveys, watershed studies, scientific literature and references, and field work.”REF The agencies did not explain what percentage of the public has that evidence available to it—that material is not exactly what anyone would find on the average sports page—or, even if it were readily available, how many average people can understand what it means. But no matter. The government is unwilling to be forthright about the matter (perhaps because of the consequences of any such admission), but it clearly believes that only experts can find that material and discern its meaning and significance.

How is that? When someone winds up in court charged with a crime, the Department of Justice relies heavily on the opinions of subject-matter experts. They testify about a host of different considerations, such as the physical, hydrological, and chemical analyses of upstream and downstream water bodies; the role that a particular area might play in filtering pollutants or providing a hospitable ecosystem for plants, fish, and invertebrates; nearby natural botanical features; and any disturbances in the terrain, such as a “ditch.”REF At one time, the government even relied on the transient presence of migratory birds as a qualifying factor, at least until the Supreme Court held that factor insufficient.REF It is no overstatement to say that, given the government’s interpretation of the CWA, federal criminal prosecutions have more closely resembled postgraduate environmental science conferences than what the public expects to see in an ordinary criminal case.REF In short, the agencies failed miserably at their attempt to clarify “waters of the United States” for the average person.

Even academics have difficulty applying that term. One has noted that “[s]ome common wetland types in North America include” the following: “salt marsh, freshwater marsh, tidal marsh, alkali marsh, fen, wet meadow, wet prairie, alkali meadow, shrub swamp, wooded swamp, bog, muskeg, wet tundra, pocosin, mire, pothole, playa, salina, salt flat, tidal flat, vernal pool, bottomland hardwood swamp, river bottom, lowland, mangrove forest, and floodplain swamp.”REF How many “ordinary people” could define what those terms mean? Consider “wetlands.” Even if you limit that term to its “common conception” of swamps, marshes, bogs, and similar areas,REF you are still left with the problem of identifying what particular water body or parcel of land is and is not a “wetland.”REF Consider how two other scholars have described that difficulty:

Although water is present for at least part of the time, the depth and duration of flooding varies considerably from wetland to wetland and from year to year.
Wetlands are often located at the margins between deep water and terrestrial uplands and are influenced by both systems.
Wetland species (plants, animals, and microbes) range from those that have adapted to live in either wet or dry conditions (facultative), which makes difficult their use as wetland indicators, to those that adapted to only a wet environment (obligate).
Wetlands vary widely in size, ranging from small prairie potholes of a few hectares in size to large expanses of wetlands several hundreds of square kilometers in area.
Wetland location can vary greatly, from inland to coastal wetlands and from rural to urban regions.
Wetland condition, or the degree to which a wetland has been modified by humans, varies greatly from region to region and from wetland to wetland.REF

As one scholar concluded: “You could not take this [1977] definition out to the field and use it with any confidence to identify the dividing line between a wetland and an adjacent upland.”REF “Memorizing the definition of a ‘wetland’ might earn you an ‘A’ on an exam in school, but that is worth little to someone who can’t use the definition to identify a ‘wetland’ in a real-life field.”REF

Judges have noticed that problem too. Judge Jane Kelly of the U.S. Court of Appeals for the Eighth Circuit has written that “most laws do not require the hiring of expert consultants to determine if they even apply to you or your property.”REF Justice Samuel Alito also has recognized that “[t]he reach of the Clean Water Act is notoriously unclear.”REF

If judges cannot determine how far “waters of the United States” reaches, what chance does a person of “ordinary intelligence” have? As I have written elsewhere:

Put yourself in the shoes of a member of the public. Assume that he read the Federal Register, understood what its terms meant because he was a hydrologist, and knew the law because he was also an attorney. Even then, that person could not by sight alone determine whether a particular small body of water (to say nothing of dry land) is covered by the CWA—even though that is what the Void-for-Vagueness Doctrine demands. According to the agencies, a “significant nexus” exists whenever a body of water, including a wetland, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a navigable water. (Put aside the fact that the Rule tautologically requires that there be a “significant” effect for there to be a “significant” nexus.) No particular body of water can be examined on its own; each one must be considered “in combination with” every other “similarly situated” body of water (whatever that undefined term means) in the region (however broadly that term is construed). Plus, tools and evidence that the average person will not have at hand, and even the average expert might not possess, can be necessary to make the determination: Remote sensing mapping information, “USGS topographic data, the USGS National Hydrography Dataset (NHD), Natural Resources Conservation Service (NRCS) Soil Surveys, and State or local stream maps” (including “aerial photographs”); “light detection and ranging” (also known as LIDAR) data; and “desktop tools that provide for the hydrologic estimation of a discharge sufficient to create an ordinary high water mark, such as a regional regression analysis or hydrologic modeling.” Agency personnel have access to them, along with “other methods for estimating ordinary high water mark, including, but not limited to, lake and stream gage data, flood predictions, historic records of water flow, and statistical evidence,” and “a regional regression analysis and the Hydrologic Modeling System (HEC-HMS),” to make a “hydrologic estimation of stream discharge sufficient to create an ordinary high water mark in tributaries under regional conditions.” The bottom line is a simple one: No one armed with either “common” or “uncommon intelligence” can know with any certainty whether the puddle or ditch in front of him is a “water of the United States” simply by looking at it.REF

The result is this: The question is not whether the statutory term “waters of the United States” is unconstitutionally vague; it is. The question is: What should the Supreme Court do about that problem? If you’re scared by the prospect that everyone will land in the hoosegow for making a reasonable mistake about the application of the CWA, fear not. It turns out that hope doesn’t just spring eternal;REF it’s at hand. There are some options short of holding the entire CWA unconstitutional.

Available Remedies for the CWA’s Unconstitutional Vagueness

The term “waters of the United States” is the linchpin for the entire CWA permitting scheme, so holding it unconstitutional would erase the entire act and force Congress to return to the drawing board. Were the Supreme Court to do so, some would rejoice, saying that the Supreme Court has saved thousands from an unjustified criminal prosecution, while others would go positively nuclear, claiming that the Court had stopped the government from preventing unscrupulous, rich, profit-seeking companies from poisoning our water supply in order to avoid paying a few shekels to comply with an eminently sensible and critically necessary public health law. The Supreme Court might not pay attention to the election returns, but it also might be unwilling to get that far out in front of media that have already condemned six of them for, as the media see it, selling women into slavery by overturning Roe v. Wade.

Fortunately, there are three remedies that do not require such a bold step. Each one would solve the vagueness problem without condemning the entire statute.REF

Remedy 1: Prohibit only criminal CWA prosecutions. The first remedy would be to bar only criminal prosecutions under the CWA until Congress deals with the vagueness in the term “waters of the United States.”REF That remedy would eliminate the void-for-vagueness objection to the statute while allowing the government (and private parties) to pursue administrative and civil remedies for unlawful actions. That option also places the responsibility for lawmaking where it belongs: in Congress’s hands, not because Congress is any good at it (I’m not Pollyannish), but because agencies and courts have no constitutional warrant for deciding what conduct should be made a crime. As I have explained elsewhere:

There is more going on here than Congress’s decision to pass an indecipherable statute (along with its subsequent refusal to shoulder the burden of clarifying it) and the Executive’s attempt to use it to reach “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.” For the last 50 years, we have become accustomed to reflexively using the criminal law as our go-to regulatory device without stopping to ask whether it should be used to tamp down every type of conduct we dislike. As the result, we have created a forest of criminal laws when only a copse might be necessary, making it impossible for anyone to know everything that is forbidden. We also have forgotten to consider the potential limits that the Constitution imposes on using criminal law as a fire extinguisher. Could Congress require every interstate traveler to know how to perform CPR or to carry aspirin in case a fellow traveler has a heart attack? Perhaps, though it would take some explaining. Could Congress require everyone to know how to perform a tracheostomy or to, better yet, remember the contents of a medical school pharmacology text? No, not unless Congress can make it a crime to flunk organic chemistry. Granted, the USACE Wetlands Delineation Manual contains only 100-plus pages, while medical school pharmacology textbooks are ten times as long, so committing the former to heart is not as big a lift as memorizing the latter. But there is a limit on what a legislature can demand that an average person know, or else the notice requirement enforced by the Void-for-Vagueness Doctrine is not even worth the label of a legal fiction. And if that is true, then the Supreme Court owes it to the public to admit as much, or else it is just as guilty as Congress and the Executive Branch for the lie that the criminal law is not Shirley Jackson’s lottery.REF

Remedy 2: Construe the CWA to be limited to certain waterborne conveyances. A second remedy would be to construe that act so that it applies only to those bodies of water that a reasonable person would know allow conveyances such as a canoe or raft to go from one state to another.REF The Void-for-Vagueness Doctrine is focused on the need for Congress to be precise, or at least to enact reasonably understandable legislation, when it desires to use the criminal law as an enforcement mechanism. That could be done here. In 1787, transportation by water was common because there were few roads and existing ones made difficult the carriage of heavy, bulky items.REF That is what the Framers had in mind when they passed the Commerce Clause to protect navigation by water.REF That understanding of the Commerce Clause also provides a test that the average person could apply when looking at a particular body of water or parcel of land.REF

Remedy #3: Recognize a Mistake of Law Defense. The third remedy would be to recognize a Mistake of Law Defense.REF Such a defense would exculpate anyone who reasonably believed that he had complied with the law. A Mistake of Law Defense allows for criminal enforcement of the CWA, and it does not require the Supreme Court to reinterpret the act. It also is not a “Get Out of Jail Free” card. As a practical matter, in many, if not most, cases it would force a defendant to take the stand to deny any knowledge of illegality. That outcome not only allows the prosecution to cross-examine the accused about what he knew,REF but also has the practical effect of reducing the government’s burden of proof from the beyond-a-reasonable-doubt standard to merely the preponderance standard. Why? Because, as a practical matter, once a defendant takes the stand, the jury will convict or acquit him based on its conclusion whether he lied, a conclusion that the jury makes under the preponderance standard, not beyond a reasonable doubt.REF In any event, a Mistake of Law Defense would greatly reduce the risk of convicting a morally innocent party. That is a grave risk in CWA prosecutions today, and the perfect should not be the enemy of the good.

To be sure, historically, the Supreme Court has repeatedly endorsed the inverse common law maxim that ignorance of the law is no excuse.REF But the Court’s decisions have merely repeated in dicta what former Justice Stephen Breyer once described as a “legal cliché.”REF The Court has never undertaken the responsibility of asking whether, as Justice Oliver Wendell Holmes would have put it, it makes sense reflexively to apply that cliché given the massive size of our federal criminal code and breathtakingly wide and heterogeneous community values.REF It is time for the Supreme Court to consider whether its oft-repeated dicta still make sense. The Sackett case might force the Court’s hand.REF


The apparent simplicity of the term “waters of the United States” likely beguiled Congress into believing that no further elaboration of its reach was necessary either because the average person could readily understand its meaning or because the EPA and Army Corps could flesh out its content. If so, that assumption was grossly mistaken. The term “waters of the United States” cries out for a limiting construction that “ordinary people” can understand. Agency officials, federal judges, lawyers, private scientific and technical experts, and average, everyday people acting in good faith could readily differ over how to apply that term to the various bodies of water and parcels of land that the EPA and Army Corps claim are covered by the CWA. No one—particularly no one lacking education and training in a relevant legal or scientific field—should be at risk of criminal prosecution for mistakenly deciding that a particular geographic site meets the agencies’ possibly ever-changing definition.

The Supreme Court has several options regarding how to ensure that the average person does not wind up imprisoned for making a reasonable mistake. The Court should endorse one of them in the Sackett case.

Paul J. Larkin is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The author wishes to thank John Malcolm, Derrick Morgan, and Bill Poole for valuable comments on an earlier draft of this paper.


Paul Larkin
Paul Larkin

Rumpel Senior Legal Research Fellow