Jurisdictional Waters

A review of Waters of the United States: POTUS, SCOTUS, WOTUS, and the Politics of a National Resource. By Royal C. Gardner. Washington, D.C.: Island Press. 2025. Pp. iv, 301. $45.

Introduction

Royal Gardner’s Waters of the United States: POTUS, SCOTUS, WOTUS, and the Politics of a National Resource (WOTUS) ¹Professor of Law, Hugh F. Culverhouse Chair, and Director of the Stetson Institute for Biodiversity Law and Policy, Stetson University.

is an irreverent, often playful romp through what, to many, has become a turgid and overbearing subject. Across much of our nation’s history, jurisdictional waters have been a proxy for cultural, economic, and political upheavals, most of which have been considerably influenced by the Supreme Court. Gardner’s motivations for the book stem from the Court’s most recent venture into “navigable waters of the United States” in Sackett v. EPA.²Sackett v. EPA, 143 S. Ct. 1322, 1345 (2023) (Thomas, J., concurring) (quoting 33 U.S.C. § 1362(7)).

Sackett came atop mountains of precedent defining the phrase, shrinking the scope of the Clean Water Act by way of (the majority’s preferred) dictionary definitions.³See id. at 1336–37 (quoting Webster’s New Int’l Dictionary (2d ed. 1954), Black’s Law Dictionary (5th ed. 1979), and Random House Dictionary of the English Language (2d ed. 1987)).

Sackett understandably provoked environmentalists and legal scholars alike. By limiting the Act’s scope to standing or flowing relatively permanent bodies of water,⁴In Sackett, the government had sought to assert Clean Water Act jurisdiction over wetlands that were only intermittently connected with Priest Lake in Idaho, itself a “navigable-in-fact” water. See Sackett v. EPA, 8 F.4th 1075, 1079–81 (9th Cir. 2021).

the Court seemed to ignore everything scientists had discovered about tributaries, wetlands, and watersheds.⁵Sackett, 143 S. Ct. at 1344 (“[W]e hold that the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters.” (quoting Rapanos v. United States, 547 U.S. 715, 742 (2006))).

Yet Gardner’s romp barely disturbs the surface of the indictment due our Supreme Court on the subject of jurisdictional waters. His centering of the Court, Congress, and the Commerce Clause obscures the staggering extent of the predicament today. And accounts like Gardner’s, which declare that the Environmental Protection Agency (EPA) and the Corps of Engineers have superior administrative capacity compared to that of the judiciary will, for many, only confirm how hopeless something as bold as the Clean Water Act is in our system of enumerated federal powers. Part I of this Review identifies Gardner’s key insights into this field, and Part II evaluates its principal claims about our waters’ jurisdictional entanglements. Part III sketches a broader indictment of the Court’s treatments of jurisdictional waters over time, linking them to a deeper decay evident in the Court today.

I. WOTUS ’s Key Insights

The Sackett saga dragged on for more than a decade in repeat trips to the Supreme Court, but its practical peak emerged when the EPA and the Corps tried to expand the Act’s jurisdiction through what they termed a “Clean Water Rule.”⁶See Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37054 (June 29, 2015) (“Clean Water Rule”). For the first iteration, see Sackett v. EPA, 566 U.S. 120 (2012).

Quite simply, the agencies were convinced that to “restore and maintain the chemical, physical, and biological integrity”⁷33 U.S.C. § 1251(a).

of the nation’s waters, they would have to be fully alert to and capable of regulating land disturbances far removed from the downstream “waters” of a watershed.⁸See Clean Water Rule, 80 Fed. Reg. at 37057–73.

This implicated wetlands and small-order tributaries—lots of them.⁹EPA assembled an exhaustive synthesis of the then-available peer-reviewed science in support of the rulemaking. See Off. Rsch. & Dev., U.S. Env’t Prot. Agency, EPA/600/R-14/475F, Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence (2015).

Gardner’s tour of the melee that ensued is exemplary in detail and precision, capturing the rulemaking and its wider salience in the broader political culture that was then developing (pp. 101–26).

To make their Clean Water Rule, the agencies capitalized on the Court’s own confused precedents interpreting the term “waters”—precedents that had evolved in three prior cases and a half dozen opinions, each court’s decision increasingly splintered.¹⁰See Clean Water Rule, 80 Fed. Reg. at 37060–61 (discussing United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006)). Riverside Bayview was a broad endorsement of the agencies’ jurisdiction over related wetlands while the two subsequent decisions were much less deferential to them.

The backlash to the resulting rulemaking became a significant ingredient in the consolidation of America’s new political right, aligning industry, big agriculture, and rural areas as a coalition against federal environmental rules in kind. That coalition’s rhetoric quickly formed the legal arguments leveled against the Obama Administration’s ultimately ill-fated rule (pp. 119–26). It is a meandering and fetid tale, and it is where Gardner’s account excels.

Gardner deftly weaves the Court’s battle in County of Maui v. Hawaii Wildlife Fund ¹¹Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462 (2020).

into this saga, which surrounded the definition of a pollution “source” and the ways in which it may be found a “discharge” to waters (pp. 169–82). But Maui functions more like a standalone spinoff in the Court’s jurisprudence. Gardner thus digs into the justices’ apparent attitudes toward the Act’s governance of “indirect” discharges and “functional equivalents” of regulated point sources which were at issue there. Justices Thomas, Alito, and Gorsuch were unbothered by the prospect of polluters who could “evade” the Act’s permitting requirements by discharging to some intermittent tributary, groundwater, or other “noncovered” waters.¹²Pp. 177–78. See Maui, 140 S. Ct. at 1481 (Thomas, J., dissenting). This was precisely what prompted Justice Kavanaugh to join Justice Breyer’s majority, albeit in a separate opinion crediting Justice Scalia in Rapanos for the reasoning about opening loopholes. See id. at 1478 (Kavanaugh, J., concurring).

One gets the impression from reading Gardner’s account that these three justices would be unbothered if the Act simply sank without a trace.

The EPA may never recover from the years the first Trump Administration spent hollowing it out in fealty to its coalition’s hyperbole. Like some other pariah agencies today, the EPA is now vastly unfit for its purposes, under constant (sometimes vitriolic) White House scrutiny,¹³See Maxine Joselow, The True Story Behind the “Gold Bars” at the Heart of Trump’s Biggest Climate Fight, Wash. Post (Mar. 24, 2025), https://washingtonpost.com/climate-environment/2025/03/24/epa-green-bank-grants-biden [perma.cc/2KZE-EAM9].

and surely incapable of taking the whole watershed approach the Clean Water Act seems to command.¹⁴See pp. 219–29.

Some of Gardner’s readers will recall the EPA’s long history as a political football. Some will recall its starring role in the Supreme Court’s late rejection of “deference” to agency interpretations of law.¹⁵See, e.g., West Virginia v. EPA, 142 S. Ct. 2587 (2022); West Virginia v. EPA, 577 U.S. 1126 (2016); Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014); cf. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2269 (2024) (recounting several EPA cases that became precedents leading to Chevron’s overruling and that Chevron itself was about EPA’s interpretation of the Clean Air Act).

One looming irony of a second Trump Administration may be that, because so many of the EPA’s authorizing statutes include citizen suit provisions, private lawsuits enforcing them will keep on coming despite the substantive dismantling of the EPA. Meanwhile, a certain quantum of EPA talent—likely more than those in power want to keep—will be minimally necessary to mount the repeal efforts the administration has promised its voters. WOTUS opens by quoting former President Obama’s admonition that “[e]lections have consequences” (p. 10). It concludes by urging readers to vote—“vote in every election, from municipal to county to state to federal”—and even to run for office (p. 229). In between these reminders, the book makes clear that the Act’s late electoral misfortunes are the wizards behind the curtain.

In truth, though, this story began with steamboats and Gibbons v. Ogden,¹⁶Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

if not before, a wrinkle Gardner teases (pp. 30–33) but quickly whistles past. Gibbons is rightly remembered as a judicial turn from the Jeffersonians’ skepticism of federal power (which the elections of 1800 had ushered in)¹⁷ Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic 19–35 (1971). Cf. Laurence H. Tribe, American Constitutional Law 306 (2d ed. 1988) (“The actual holding of Gibbons was a narrow one . . . .”).

toward a government of rising national initiative (which the Civil War would eventually usher in).¹⁸See, e.g., Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 188 (2012) (noting that Gibbons established Congress’s power to regulate navigation as commerce and that most of the contests thereafter were about state regulations of commerce); Paul F. Paskoff, Troubled Waters: Steamboat Disasters, River Improvements, and American Public Policy, 1821–1860, at 129 (2007) (“The most well-known effort to organize and sustain a steamboat monopoly involved an attempt to control a particular route of service in New York State and ended in failure with the 1824 landmark U.S. Supreme Court decision in Gibbons v. Ogden.”).

Less known about Gibbons is its intense focus on the federal license Congress had conferred on navigators like Gibbons and how that set up a contrary New York law as “repugnant” to Congress’s “coasting” statute and the Constitution.¹⁹See Gibbons, 22 U.S. at 212–15, 240.

In pinpointing the legal significance of that federal “license,” Chief Justice Marshall’s long opinion indulged and even dignified insistent doubts—which would echo repeatedly across our history—that Congress had any power to immunize those doing business in interstate commerce from state law.²⁰See id. at 195 (“The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State.”).

In case after case, perhaps most notably in Cooley v. Board of Wardens,²¹Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299 (1852).

the Court would struggle with Gibbons’s approach to such “repugnancy” and, thus, federal supremacy on the water.²²This aspect of Gibbons, in concert with several nineteenth-century precedents that followed it, formed the roots of the Court’s “dormant” Commerce Clause jurisprudence and, indeed, of the Court’s other “dormant preemption” doctrines that followed. See Stephen A. Gardbaum, The Nature of Preemption, 79 Corn. L. Rev. 767, 785–95 (1994). Gardner introduces Gibbons without linking it to the rise of the Court’s eventual “dormant” activism (pp. 31–33).

Familiarity with what followed in the wake of Gibbons casts a cold light on Sackett and opinions like it. Key to the plausibility of Justices Thomas, Alito, and Gorsuch’s opinions about the EPA and its late twentieth-century enabling statutes like the Clean Water Act is the remorseless editing done to that nineteenth-century history, which accounts like Gardner’s too often tolerate by omission or abbreviation. A fuller accounting of Gibbons’s echoes throughout the nineteenth century would better illuminate that editing as misleading at best.

No later than the Northwest Ordinance of 1787, before our Constitution was even proposed or our present Union formed, did federal law first promise the continued navigability of our inland waterways (pp. 29–30). This guarantee was to protect the principal public value of those waters notwithstanding whatever states intended to the contrary. The first Congress readopted that ordinance root and branch, continuing it in “full effect” in the “territory north-west of the river Ohio.”²³Act of Aug. 7, 1789, 1 Stat. 50, 50–51 (1789). The guarantee, recounted in the margins of the Statutes at Large and prefaced, as the ordinance had, as “articles of compact between the original States, and the people and States in the said territory,” was that

The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.

Id. at 52.

Gardner rightly notes that it would not be the last time Congress made such a guarantee (p. 30). Indeed, subsequent Congresses appropriated money generously (if unevenly) to that end, despite the Jeffersonians’ efforts to bottle up the federal government’s initiative to make inland waters more amenable to navigation.²⁴See Paskoff, supra note 18, at 40–84; Carter Goodrich, Government Promotion of American Canals and Railroads, 1800–1890, at 19–48 (1960).

In critiquing the Sackett Court’s history of navigable waters precedents at the Court, WOTUS offers Court skeptics a welcome proof that judges are rarely historians, that the current complement of Supreme Court justices are certainly not historians, and that a little history—insufficiently contextualized and misleadingly edited—can be a dangerous thing.²⁵Cf. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2177 (2022) (Breyer, J., dissenting) (exploring the “host of troubling questions” raised by the Court’s “insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment”).

II. Principal Claims

A book about the Court, Congress, and the Commerce Clause is only as good as its account of a tangle of precedents. By that measure, WOTUS is quite good, even in its tight focus on commerce and waters. When it came to dividing up the power to regulate and conduct commerce, the Court of the nineteenth century struggled mightily and without obvious success to differentiate state and federal regulatory spheres.²⁶See pp. 29–40.

Locality jurisdiction became a convenient alternative to differentiating state from federal roles functionally.²⁷See David W. Robertson, Admiralty and Federalism: History and Analysis of Problems of Federal-State Relations in the Maritime Law of the United States 119–21 (1970).

Beginning from Gibbons’s conclusion that Congress’s 1793 coasting statute preempted a New York law that bestowed a navigational monopoly,²⁸See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 212–13 (1824).

and following into dozens of later cases interpreting the long Gibbons opinion, the Supreme Court found itself balancing state versus federal interests in “commerce.” A surprising number of its cases arose from shared waters (pp. 30–36).

Gardner anticipates more instances of the current Court attacking the Clean Water Act (pp. 18–23)—as anyone who has read Sackett’s majority opinion disparaging the Act as “a potent weapon”²⁹Sackett v. EPA, 143 S. Ct. 1322, 1330 (2023).

would. Sackett’s impact may keep cascading for years to come. Federal wetlands permitting was a major trigger—perhaps the key trigger—for other federal environmental laws like the National Environmental Policy Act, the Endangered Species Act, and others (pp. 78–79). Gardner spends considerable effort correcting the histories offered in the Sackett majority opinion and a concurrence by Justices Thomas and Gorsuch (pp. 67–80, 202–10). Justice Alito’s majority opinion ignored the Clean Water Act’s parentage in the nineteenth century and the path it paved to the modern Commerce Clause. Indeed, Justice Alito refused to acknowledge any connection at all beyond the odd citation to The Daniel Ball.³⁰See id. at 1330, 1337 (citing The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871)). In The Daniel Ball, the Court, construing the Steamboat Act of 1838, 5 Stat. 304, and its reference to “the bays, lakes, rivers, or other navigable waters of the United States,” held that the act extended to Michigan’s Grand River and regulated vessels thereon. See id. at 558, 563–64, 565.

More troubling was Justice Thomas’s concurrence’s active dissembling in its review of that history.³¹See Sackett, 143 S. Ct. at 1344–50 (Thomas, J., concurring).

Gardner’s specialty is wetlands protection laws, and WOTUS is wont to note the many appearances wetlands have made in American legal history, especially their odd appearance here and there in the nineteenth century. In Willson v. Black Bird Creek Marsh Co.,³²Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829).

the Court distinguished Gibbons, holding that a Delaware law granting a monopoly permitting one company to dam up a navigable creek was not preempted by the 1793 Act. The Court reasoned that the creek flowed entirely within Delaware, and the wetlands draining to it were said to be breeding grounds for disease.³³Pp. 33–34; Willson, 27 U.S. at 249 (reporting that Mr. Wirt, then recently Attorney General of the United States, argued for the company that Black Bird Creek was a “sluggish reptile stream[]” that did “not run but creep,” and which “destroy[ed] the health of all those who inhabit its marshes”).

Willson stands, thus, as Chief Justice Marshall’s only other foray into what would become the Court’s “dormant” Commerce Clause doctrine.³⁴Sam Kalen, Reawakening the Dormant Commerce Clause in Its First Century, 13 U. Dayton L. Rev. 417, 430 (1988).

As demonstrated by the “Swamp Lands Acts” (p. 36) of 1849, 1850, and 1860,³⁵Act of Mar. 2, 1849, ch. 87, 9 Stat. 352; Act of Sep. 28, 1850, ch. 84, 9 Stat. 519; Act of Mar. 12, 1860, ch. 8, 12 Stat. 3.

corruption and folly have long been the tale. Those statutes provided for mass transfers of low-lying lands from the federal estate to states who claimed them as “swamp lands” after surveying those lands and meandering through them. Gardner credits it all to “[f]raud in [d]raining the [s]wamp” (p. 36), observing that when the states were selecting lands to take off the United States’ hands, “[s]tate agents identified huge swaths of land adjacent to creeks and rivers without regard to the surveys done by the General Land Office,” thereby grabbing lands that should not have been regarded as “swamp” (p. 37). It makes for an odd coupling to see Gardner’s indictment of how much land the states claimed through the Swamp Lands Acts, including some of the “finest . . . agricultural land” (p. 37), followed by his lament over the Supreme Court’s rejection of riparian sciences and ballooning impact of the Obama Clean Water Rule on the Clean Water Act’s jurisdiction (pp. 114–17, 169–70). Gardner is certainly not alone in his allegations of land fraud from those statutes,³⁶Gardner relies principally on an account of the General Land Office’s role mounted by Benjamin Hibbard in 1939 (pp. 37, 251 nn.54–56). See Benjamin Horace Hibbard, A History of the Public Land Policies (1939). As Hibbard noted, “Florida, Louisiana, and Arkansas ha[d] approximately three-fifths of all the swamp lands, and . . . most of the remaining grants [were] clustered about the Great Lakes, in Minnesota, Wisconsin, and Michigan.” Id. at 276.

but he may be the first to register them while also describing how twentieth-century science revealed the importance of floodplains, intermittent tributaries, and wetlands to downstream water quality—and how intertwined they all are scientifically and should be legally.³⁷Professor Gates’s more measured accounting in 1968 attributed much of the friction and failures in this, the original “reclamation” program of the state and federal governments, to the “vague and indefinite term ‘swamp and overflowed lands unfit for cultivation,’ ” something the legislation’s opponents attacked repeatedly. Paul W. Gates, Pub. Land L. Rev. Comm’n, History of Public Land Law Development 325 (1968).

The Court held in The Daniel Ball ³⁸The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870).

that Congress’s coasting statutes and steamboat acts as of 1870 governed a vessel traveling Michigan’s wholly intrastate Grand River as “navigable waters of the United States.”³⁹Justice Field’s statement of the case listed one question as “first”—whether the statute’s reference to “navigable water of the United States” reached the wholly intrastate Grand River—and a second question (or at least what Field maintained was a separate question), whether the acts were “applicable” to a vessel engaged as a common carrier between places in the same state if cargo aboard was “destined to places in other States.” Id. at 562–63. Plainly the Court understood the statutes’ geography as distinct from the functional scope and factual predicate(s) necessary to their applicability.

The Grand River is Michigan’s longest, flowing into Lake Michigan across from Milwaukee, discharging an estimated average of about five thousand cubic feet per second.⁴⁰See Grand River/Grand Rapids Michigan, EPA: Urb. Waters P’ship (Oct. 25, 2016), https://19january2017snapshot.epa.gov/urbanwaterspartners/grand-rivergrand-rapids-michigan_.html [perma.cc/E9JH-RQS4]; Watershed Report: Grand River, EPA (Feb. 15, 2017), https://watersgeo.epa.gov/watershedreport/?comid=9005799 [perma.cc/J5DF-JNPN].

The vessel’s owners had refused to seek a license required by and offered under Congress’s coasting statute and the steamboat act. To read the opinion in the earlier Willson v. Black Bird Creek, though, the Grand River should never have been “jurisdictional.”⁴¹The Grand River flows entirely within Michigan, as did Blackbird Creek, and Michigan had done much to regulate and enable the commerce being carried on by the vessel. See Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 249; The Daniel Ball, 77 U.S. at 563–64.

It was wholly intrastate. For a time, indeed, this distinction took on critical significance in jurisdictional waters.⁴²See, e.g., Veazie v. Moor, 55 U.S. (14 How.) 568, 571–74 (1853); Withers v. Buckley, 61 U.S. (20 How.) 84 (1858); Milnor v. New Jersey R.R. Co., 17 F. Cas. 412 (C.C.D.N.J. 1857) (No. 9,620) (Grier, J., on circuit); Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713 (1866); The Thomas Swan, 23 F. Cas. 1011 (S.D.N.Y. 1872) (No. 13,931).

Of course, as Gardner records, The Daniel Ball has been known ever since as an emphatic rejection of the English “tidewater” rule for jurisdictional waters (pp. 35–36), a “rule” admiralty specialists continued to debate for another century.⁴³See Robertson, supra note 27, at 106–09.

The Daniel Ball, however, may count among the best examples of how the Court’s shifting conceptions of Congress’s power garbled its holdings and eventually torched every recognizable thread on jurisdictional waters that followed Chief Justice Marshall’s lead.

As Gardner notes, The Daniel Ball was unmistakably an interpretation of Article I as to both the functional and geographic reach of Congress’s commerce power (p. 35). But it was also necessarily, albeit implicitly, a construction of Article III’s grant of the admiralty jurisdiction—jurisdiction to adjudicate—because the United States had proceeded against the vessel in rem for its master and commander’s alleged misdeeds.⁴⁴The Daniel Ball, 77 U.S. at 558.

By filing a libel in admiralty in the District Court for the Western District of Michigan, that jurisdiction’s reach was put at issue as well. The opinion’s oft-repeated “test” for “navigable waters of the United States” (whether said waters “are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water”) was a construction of a phrase employed in the Act of July 7, 1838, known as the Steamboat Act.⁴⁵Id. at 563. Also known as the Steamboat Act, ch. 191, 5 Stat. 304 (1838), the 1838 statute targeted (in part) vessels on “the bays, lakes, rivers, or other navigable waters of the United States,” id. at 304 (emphasis added), possibly in contradistinction to navigable waters of but a single state. See David P. Currie, The Constitution in Congress: Democrats and Whigs 1829–1861, at 124–25 (2005).

The test was, then, also federal judge-made law interpreting that statute. This was the essential challenge of navigable waters in the nineteenth century: they were implicated in so much, legally. Even before the “dormant” commerce dilemmas boiled over, the Court was impelled to overrule Justice Story’s holding in The Steam-Boat Thomas Jefferson,⁴⁶The Steam-Boat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825).

concluding in The Propeller Genesee Chief that navigable waters did not necessarily stop at the tide’s influence.⁴⁷The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 455–56 (1852).

In grounding the Daniel Ball dictum that would become the storied Commerce Clause chestnut, though, Justice Field cited only The Propeller Genesee Chief and The Hine v. Trevor,⁴⁸The Daniel Ball, 77 U.S. at 563; The Hine v. Trevor, 71 U.S. (4 Wall.) 555 (1867).

two cases inarguably about the scope of Article III, Section 2’s admiralty and maritime jurisdiction.⁴⁹The Propeller Genesee Chief and The Hine v. Trevor are known for their construction of Congress’s statutory grants of the jurisdiction over “inland” navigable waters and its consistency with Article III. See Robertson, supra note 27, at 109 (“The Genesee Chief was the case that accomplished the rejection of the tidewater doctrine.”), id. at 116–17 (“[I]n The Hine v. Trevor, the Court reiterated the conclusion that the jurisdiction of admiralty on the Great Lakes and connecting rivers was governed by the Act of 1845, while that on the other western waters was granted by the 1789 Judiciary Act.”) (citations omitted). In each case, the Court concluded that Article III set no geographic limit on the jurisdiction which Congress had exceeded.

Indeed, Field prefaced his test as follows: “The doctrine of the common law as to the navigability of waters has no application in this country.”⁵⁰The Daniel Ball, 77 U.S. at 563.

To which “common law” he was referring was wholly unclear. It was also probably inaccurate. Even as of 1871, the “common law” of navigability had plenty of say on matters like the boundaries of riparian parcels, admiralty jurisdiction, and others.⁵¹See, e.g., Weber v. Bd. of Harbor Comm’rs, 85 U.S. (18 Wall.) 57, 64–65 (1873); Yates v. Milwaukee, 77 U.S. (10 Wall.) 497, 507 (1871); United States v. Pacheco, 69 U.S. (2 Wall.) 587, 590 (1865); Howard v. Ingersoll, 54 U.S. (13 How.) 381, 409–11 (1852); Pollard v. Hagan, 44 U.S. (3 How.) 212, 225–30 (1845).

Of course, to the scope of Article I powers, the significance of some common law was growing increasingly uncertain by then.⁵²See Elizabeth Brand Monroe, The Wheeling Bridge Case: Its Significance in American Law and Technology 115–32 (1992).

Congress’s powers were not those of the Parliament nor of the Crown. More importantly, the Supremacy Clause rendered only “Laws of the United States” made “in Pursuance” of the Constitution the “supreme Law of the Land.”⁵³ U.S. Const. art. VI, § 2.

It said nothing of judge-made doctrines, even those found in Supreme Court opinions. So while the Court’s piecemeal efforts to distinguish state from federal spheres in water-related commerce would continue through the twentieth century and into the present, several profound jurisdictional confusions would proliferate.

Jurisdictional struggles on the nation’s waters multiplied as technology and society evolved. Dams on major interstate rivers, once infeasible, soon enough became a regular source of conflict.⁵⁴See, e.g., Perrine v. Chesapeake & Del. Canal Co., 50 U.S. (9 How.) 172 (1850); Rundle v. Del. & Raritan Canal Co., 55 U.S. (14 How.) 80 (1853); Huse v. Glover, 119 U.S. 543 (1886); Pound v. Turck, 95 U.S. 459 (1878).

Bridges became a staple at the Supreme Court in the second half of the nineteenth century and even returned on different grounds in the twentieth (pp. 42–43). By the early twentieth century, hydropower had become a major jurisdictional struggle.⁵⁵See, e.g., United States v. River Rouge Improvement Co., 269 U.S. 411 (1926); New Jersey v. Sargent, 269 U.S. 328 (1926); United States v. West Virginia, 295 U.S. 463 (1935); United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940); Fed. Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239 (1954).

Yet, as Part III discusses, these obstructions in (and potential “improvements” of) navigable waters became a mess in the law, due in part to the Court’s shifting opinions of what Congress’s power over those waters should be and in part to its slapdash coupling and uncoupling of jurisdictional waters. The more the Court took for itself the prerogative of declaring some state “intrusion” upon interstate commerce to be “repugnant” to the Union or to the Constitution regardless of the existence of federal legislation,⁵⁶See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827); Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837); Searight v. Stokes, 44 U.S. (3 How.) 151 (1845); The Passenger Cases, 48 U.S. (7 How.) 283 (1849); Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299 (1852); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Cushing v. The Ship John Fraser, 62 U.S. (21 How.) 184 (1859).

the deeper the muddle grew.

Pennsylvania v. Wheeling & Belmont Bridge Co., ⁵⁷Pennsylvania v. Wheeling & Belmont Bridge Co. (Wheeling Bridge I ), 54 U.S. (13 How.) 518 (1852).

though missing from WOTUS, animates this better perhaps than any other single case. Only a few years after Swift v. Tyson and Justice Story’s confident declaration of the Court’s readiness to apply its own “principles established in the general commercial law” to the exclusion of local law,⁵⁸Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842) (construing Act of Sep. 24, 1789, 1 Stat. 73, 92 (1789)).

the Wheeling Bridge dispute tugged at several threads in the Court’s jurisdictional waters opinions. The state’s legal attack on the bridge as an obstruction of the Ohio River was well funded and multipronged, yet ended in a rambling, impenetrable opinion which refuses to this day to reveal its legal basis.⁵⁹A superb account of this quandary is Elizabeth Brand Monroe’s The Wheeling Bridge Case: Its Significance in American Law and Technology (1992). See supra note 52. Nowhere in its case-in-chief did the state argue that the bridge violated the coasting statutes of the United States. See id. at 60–64, 78–87. Justice Catron, who reluctantly joined the majority opinion, wrote to James Buchanan in a “gossipy letter” dated January 1852 to say that, although the Court’s majority had found the bridge an “obstruction of commerce,” McLean’s opinion was a “scattering thing.” 5 Carl B. Swisher, The Oliver Wendell Holmes Devise History of the Supreme Court: The Taney Period, 1836–1864, at 412 (1974).

Embroiled in the degenerating sectional politics of the time,⁶⁰See John R. Schmidhauser, Judicial Behavior and the Sectional Crisis of 1837–1860, 23 J. Pol. 615 (1961).

the Court of that December 1851 Term was also deciding Cooley v. Board of Wardens,⁶¹Cooley, 53 U.S. at 299.

another “dormant commerce clause” landmark forged from the Gibbons / Willson tandem. As in Cooley, the Wheeling Bridge Court sought to identify and weigh the federal interests in interstate waters without the benefit of federal law thereon defining them, let alone how those interests related to state law arguably encroaching on said interests.⁶²See Wheeling Bridge I, 54 U.S. at 564–65 (sustaining the Court’s jurisdiction to hear Pennsylvania’s bill because the common law afforded no remedy, Pennsylvania law would not apply to a bridge in Virginia, and because “[t]he Ohio being a navigable stream, subject to the commercial power of Congress, and over which that power has been exerted,” there was a “public right on this great highway”). Cf. Cooley, 53 U.S. at 319 (“Whatever subjects of this [commerce] power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain.”).

In accepting jurisdiction to hear Pennsylvania’s bill in equity—against the river’s first suspension bridge at Wheeling (then in Virginia)—the Supreme Court agreed to decide how the two states should share what had become the nation’s premiere marine thoroughfare. The upstream state’s major commercial terminus, Pittsburgh, could not abide a future where the largest steamboats were blocked downstream.⁶³See Wheeling Bridge I, 54 U.S. at 562.

Wheeling, Virginia, was then making a play to take Pittsburgh’s place as a trade hub, just as rail and the national (Cumberland) road were approaching their big booms.⁶⁴See Monroe, supra note 52, at 12–20, 30–38.

Congressional acquiescence to the bridge and the Virginia legislature’s several endorsements and fiscal supports barred the Court from finding that it was a public nuisance under local law.⁶⁵See Wheeling Bridge I, 54 U.S. at 582 (Taney, C.J., dissenting) (“The rule as to navigable waters is this: Every independent nation has the exclusive jurisdiction over the navigable waters lying within its territorial limits. . . . And an erection authorized by the legislature cannot be a nuisance, public or private.”).

Doubts about the Court’s jurisdiction to hear the contest bubbled up repeatedly.⁶⁶See Pennsylvania v. Wheeling & Belmont Bridge Co. (Wheeling Bridge II ), 59 U.S. (18 How.) 421, 423–30 (1856).

After years of process, all the Court could decide was that the bridge caused “private and . . . irreparable injury” while not necessarily being a nuisance in any strict sense.⁶⁷Wheeling Bridge I, 54 U.S. at 564. McLean’s opinion struggled noticeably to avoid the bar to a nuisance judgment, stating at one point that “[t]he fact that the bridge constitutes a nuisance is ascertained by measurement.” Id. at 568. In response to a spate of subsequent motions, Justice Nelson for a fractious majority lifted Justice Grier’s “shadow docket” “executory” decree that Pennsylvania’s injuries be abated, confronting a Congress that had since named the bridge a “lawful structure[] in [its] present position[] and elevation[]” as a “post-road[].” See Wheeling Bridge II, 59 U.S. at 429 (quoting Act of Aug. 31, 1852, 10 Stat. 110, 112).

The state’s “dignity” gave it standing to sue in the Court’s original jurisdiction and seemingly animated the majority’s never-finally-described relief, which only required that the injury be abated somehow.⁶⁸Justice McLean’s opinion asserted both that Pennsylvania was not suing in a public or sovereign capacity and that it was not suing on the behalf of the private parties in and around Pittsburgh who would suffer the bridge’s effects. Wheeling Bridge I, 54 U.S. at 559.

In this case the State of Pennsylvania is not a party in virtue of its sovereignty. It does not come here to protect the rights of its citizens. . . . It assumes and claims, not an abstract right, but a direct interest in the controversy, and that the power of this court, can address its wrongs and save it from irreparable injury.

Id. In the decree, the majority held the prescribed actions open and in the alternative for the defendants. See id. at 625–27. Only in a later “shadow docket” petition before Justice Grier in chambers did a decree order the bridge be amended “forthwith.” See Wheeling Bridge II, 59 U.S. at 422–23 (Grier, J., in chambers).

If the state’s injury was actionable, though, it had to stem from some source of law—unless, of course, the Court was just making it up in “equity,” which, in a case of such political freight, would not have served the Court’s ends well.⁶⁹Chief Justice Taney’s dissent made this point unmistakably clear. See Wheeling Bridge I, 54 U.S. at 580–93 (Taney, C.J., dissenting). Justice Daniel—the Court’s only Virginian—penned a venomous (and less effective) dissent. See id. at 593–612 (Daniel, J., dissenting).

Yet the only alternative—after ruling out state law, federal statute, treaty, and every other positive source of law—was federal judge-made law.⁷⁰The case even involved an early iteration of what we now call the “shadow docket” with Justice Grier—the Court’s lone Pennsylvanian—hearing an application for what amounted to a preliminary injunction in August 1849. Monroe, supra note 52, at 50–55 (describing the proceedings in chambers and the application for immediate relief, which Grier denied).

After acknowledging Congress’s studied indifference to the Wheeling bridge itself, the Court concluded that “Congress have not declared in terms that a State, by the construction of bridges, or otherwise, shall not obstruct the navigation of the Ohio, but they have regulated navigation upon it.”⁷¹Wheeling Bridge I, 54 U.S. at 565.

Apparently, only the Court could conclude that the Ohio River’s obstruction by this bridge at that locus in quo was wrong because it was contrary to federal interests.⁷²Cf. id. at 568–78 (balancing the inconveniences of the bridge against its utility to users and concluding the bridge as built did excessive injury to Pennsylvania).

And that necessary-but-implied inference would return in countless jurisdictional waters cases to come.

Federal jurisdiction in the nineteenth century was as worryingly complex as it would be in the twentieth and twenty-first. The difference, however, was the path to federal court. There was no general “arising under” jurisdiction.⁷³See Act of Sep. 24, 1789, 1 Stat. 73, 77–78.

The diversity and admiralty jurisdiction in the lower federal courts comprised most of the Supreme Court’s appellate docket, along with those judgments of state courts reviewable under Section 25 of the Judiciary Act of 1789.⁷⁴See Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 14–102 (1928).

Federal equity practice, however, famously enabled federal courts to rule on all manner of complaints and prayers for relief where jurisdiction to adjudicate was found.⁷⁵See Kristin A. Collins, “A Considerable Surgical Operation”: Article III, Equity, and Judge-Made Law in the Federal Courts, 60 Duke L.J. 249 (2010); William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513 (1984).

Wheeling Bridge thus rendered alleged obstructions to navigability actionable. Thereafter, such actions regularly reached the Court, long after Congress had finally legislated that the Wheeling bridge was lawful and made the case moot; such actions regularly tested the Court’s own understanding of federal common law as “law” in the process.⁷⁶See Wheeling Bridge II, 59 U.S. (18 How.) 421, 433 (1856). Other cases established a contrasting rule for “intrastate” waters. See Veazie v. Moor, 55 U.S. (14 How.) 568, 571–75 (1853) (holding that Penobscot River, because wholly intrastate, was not subject to preemption of state law by federal interests in navigability); Miss. & Mo. R.R. Co. v. Ward, 67 U.S. (2 Black) 485, 495–96 (1863) (dismissing bill in equity filed in District of Iowa circuit court for lack of jurisdiction because bridge over Mississippi was not fully within that court’s equitable jurisdiction); Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 729 (1866) (distinguishing Wheeling Bridge by recourse to Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829), because Schuylkill River was wholly intrastate); The Rock Island Bridge, 73 U.S. (6 Wall.) 213, 216 (1867) (rejecting jurisdiction in admiralty for a “maritime lien” over an obstructing bridge as outside the scope of admiralty’s in rem jurisdiction); The Clinton Bridge, 77 U.S. (10 Wall.) 454, 462–63 (1870) (affirming dismissal of suit challenging bridge over Mississippi between Iowa and Illinois in accordance with statute enacted by Congress during the pendency of the suit declaring the bridge “shall be a lawful structure”).

As Part III explains, those bridge cases put the Court’s adventures on display, heading it toward a reckoning with its own shortcomings. Gardner rightly names Willamette Iron Bridge Co. v. Hatch ⁷⁷Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888).

as that turning point (pp. 38–39), albeit one little known then or now. Willamette finally dumped what had for decades festered in the Court’s opinions as some nascent “common law” governing the obstruction of navigable waters.⁷⁸P. 39; Willamette, 125 U.S. at 17.

The case was brought in equity challenging a bridge over the Willamette River in Portland a few miles upstream of its confluence with the Columbia.⁷⁹See Willamette, 125 U.S. at 3.

After studious consideration of Wheeling Bridge, the Court held Congress could prohibit the bridge if it chose to, but that it had not done so.⁸⁰Id. at 8–17.

The implication that the Willamette was an “intrastate” river—ignoring its continuity and identity with the massive Columbia/Snake system—hardly helped matters.⁸¹After rejecting counsel’s argument that Wheeling Bridge supplied the necessary federal rule of law for the complaint, the Court intoned simply that it was not “a precedent for the jurisdiction of the Circuit Courts of the United States in matters pertaining to bridges erected over navigable rivers, at least those erected over rivers whose course is wholly within a single State. The Willamette River is one of that description.” Id. at 17.

But the Willamette opinion finally moved Congress to enact a general regulation of obstructions and degradations of navigable waters in a series of rivers and harbors acts that followed (pp. 40–43). What it could not do was erase the Court’s own equivocating opinions on who controlled the rivers and why. Jurisdiction is, at its essence, about who decides, and jurisdictional waters were about to get far more daunting.

By the end of the century, the Court was interpreting Congress’s reactions to Willamette to reach upstream “intrastate” flows and tributaries—if only for their contributions to the “navigable capacity” of downstream waters. In United States v. Rio Grande Dam & Irrigation Co.,⁸²United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899).

the Court read Congress’s 1890 prohibition on “the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction” to reach a dam site in the nonnavigable middle reaches of the Río Grande at Elephant Butte, New Mexico.⁸³Id. at 706–07 (interpreting Act of Sep. 19, 1890, 26 Stat. 426, 454).

By then it was clear that navigability was more appropriate to expert testimony than judicial notice.⁸⁴Cf. id. at 696–99 (discussing The Montello, 87 U.S. (20 Wall.) 430 (1874), and the testimony that was needed to resolve navigability in that case). The Court called the Ohio’s navigability a “historical fact, which all courts may recognize” in Wheeling Bridge. Wheeling Bridge I, 54 U.S. (13 How.) 518, 561 (1852).

The preemptive interests of the United States in navigation—even as to upstream, nonnavigable reaches of the river—seemed assured.⁸⁵Rio Grande Dam, 174 U.S. at 703 (“[T]he jurisdiction of the General Government over interstate commerce and its natural highways vests in that Government the right to take all needed measures to preserve the navigability of the navigable water courses of the country even against any state action.”).

Gardner credits Rio Grande Dam as supplying the Court’s “entire watershed” understanding of navigability (p. 41), platforming it as an admission of “the truth that activities on nonnavigable tributaries can affect navigable waters, with the consequence being that the federal government has regulatory authority over the entire watershed.”⁸⁶P. 42. Gardner’s direct, italicized quote emphasizing “anything, wherever done or however done, within the limits of the jurisdiction of the United States, which tends to destroy the navigable capacity of one of the navigable waters of the United States,” id., was the Court’s declaration that it would apply the 1890 statute as “an exercise by Congress of the power, oftentimes declared by this court to belong to it, of national control over navigable streams . . . .” Rio Grande Dam, 174 U.S. at 708.

If that was the Court’s intention in Rio Grande Dam, though, it had a strange way of following through. As Gardner recounts, the effect of Congress’s legislation of general controls for navigation was that Congress and the Secretary of War (to whom it delegated that power) were soon fully enmeshed in day-to-day management of the nation’s major rivers (pp. 40–45).

For example, leading up to Cummings v. Chicago, the Secretary of War approved the construction plans for a dock on the Calumet River in Chicago.⁸⁷Cummings v. Chicago, 188 U.S. 410, 412 (1903).

The city objected and the issue became jurisdiction over the would-be dock builders’ bill in equity to enjoin the city.⁸⁸Id. at 416–18.

Even then, obtaining legal relief in such a case was far trickier than sustaining a bill in equity against a state official for allegedly impending deviation(s) from federal law.⁸⁹Cummings arose after an 1891 statute granted “arising under” jurisdiction to the district courts for questions relating to the power of Congress under the Constitution—including those over the navigable waters of the United States. See id. at 426. Suits in equity for injunctions of the kind were notably easier to sustain than those for legal relief, though, especially given the relevant immunity doctrines. See David L. Shapiro, Ex Parte Young and the Uses of History, 67 N.Y.U. Ann. Survey Am. L. 69, 74–81 (2011).

According to Gardner, the Court “once again affirmed that the federal and state governments could have concurrent jurisdiction over the same activities in the same waters” (p. 44).

The “controlling question” in Cummings, however, was whether the web of Congress’s rivers and harbors statutes plying greater Chicagoland’s waters had fully preempted the state (or the city) from exercising authority over the site in question.⁹⁰Cummings, 188 U.S. at 411–12.

The controlling question in the case is whether the plaintiffs have the right, in virtue of certain legislation of Congress and of certain action of the Secretary of War . . . to proceed with the proposed work in disregard of an ordinance of the city of Chicago requiring the permission of its Department of Public Works as a condition precedent to the construction of any dock within the limits of the city.

The Court prefaced its analysis, stating that

In a sense, but only in a limited sense, the United States has taken possession of Calumet River, by improving it, by causing it to be surveyed, and by establishing lines beyond which no dock or other structure shall be erected in the river without the approval or consent of the Secretary . . . .⁹¹Id. at 426 (emphasis added). Curiously, the Court then maintained that “Calumet River, it must be remembered, is entirely within the limits of Illinois, and the authority of the State over it is plenary, subject only to such action as Congress may take in execution of its power under the Constitution to regulate commerce . . . .” Id. at 427.

And then it concluded that “until Congress acts on the subject, the power of the state over bridges across its navigable streams is plenary.”⁹²Id. at 428. The Court had previously held that delegations of authority to the Secretary of War over “water-ways of the United States” which were wholly intrastate could elicit stricter scrutiny. Lake Shore & Mich. S. Ry. Co. v. Ohio, 165 U.S. 365, 367–68 (1897).

Illinois’s authority was plenary until it was not, apparently.

The Supreme Court would eventually grow intimately familiar with the “Chicago Area Waterway System” (CAWS) the War Department was then fashioning.⁹³See Jamison E. Colburn, Rethinking the Supreme Court’s Interstate Waters Jurisprudence, 33 Geo. Env’t L. Rev. 233, 258 n.179 (2021); see also Missouri v. Illinois, 180 U.S. 208 (1901); Missouri v. Illinois, 200 U.S. 496 (1906); Econ. Light & Power Co. v. United States, 256 U.S. 113 (1921); Sanitary Dist. v. United States, 266 U.S. 405 (1925); Wisconsin v. Illinois, 278 U.S. 367 (1929); Wisconsin v. Illinois, 281 U.S. 179 (1930); Wisconsin v. Illinois, 289 U.S. 395 (1933); Wisconsin v. Illinois, 309 U.S. 569 (1940); Wisconsin v. Illinois, 388 U.S. 426 (1967); Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765 (7th Cir. 2011), cert. denied, 565 U.S. 1241 (2012).

The more familiar it became, though, the less assured it seemed in confirming to the other branches what their authority over the CAWS included. The CAWS would ultimately take what were once the Calumet, Chicago, Des Plaines, Illinois, and Salt Rivers into its reach, linking Lake Michigan to the upper Mississippi through a network of passages.⁹⁴See Joseph D. Kearney & Thomas W. Merrill, Lakefront: Public Trust and Private Rights in Chicago 165–92 (2021).

Before all the “enhancements” (dams, locks, pumps, canals, etc.) filling them with Lake Michigan water, though, those component rivers were intrastate, non- or seminavigable—and famously choking on Chicago’s sewage.⁹⁵See Colburn, supra note 93, at 257–58.

Only through big federal money, engineering heroics, and brute force would that change.⁹⁶See Kearney & Merrill, supra note 94, at 175–81.

Jurisdictionally, it came down to saturating federal involvement and the Court’s indirect facilitation thereof in case after case.⁹⁷See Colburn, supra note 93, at 258–59; see also Herbert H. Naujoks, The Chicago Water Diversion Controversy, 30 Marq. L. Rev. 149, 174 (1946).

By function and by locality, federal and state roles would evolve rapidly, bringing the Court a steady stream of opportunities to opine on jurisdictional waters.

III. That Fuller Indictment

As Lauren Benton showed in her expert A Search for Sovereignty, America’s rivers were the epicenter of European imperial ambitions and hopes for projecting sovereign power.⁹⁸See Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900, at 45–46 (2010).

When those rivers turned out to be wilder and harder to navigate than they first believed, the treachery of it all did almost nothing to slow the push inland.⁹⁹Id. at 143–59.

The courts of the United States wrote their own chapter of that tale in the nineteenth century. The lower courts hearing the first challenges to bridges as obstructions of commerce struggled awfully and without much success.¹⁰⁰See, e.g., United States v. New Bedford Bridge, 27 F. Cas. 91 (C.C.D. Mass. 1847) (No. 15,867) (Woodbury, J., in chambers); Devoe v. Penrose Ferry Bridge Co., 7 F. Cas. 566 (C.C.E.D. Pa. 1854) (No. 3,845) (Grier, J., in chambers); United States v. R.R. Bridge Co., 27 F. Cas. 686 (C.C.N.D. Ill. 1855) (No. 16,114) (per curiam); Milnor v. New Jersey R.R. Co., 17 F. Cas. 412 (C.C.D.N.J. 1857) (No. 9,620) (Grier, J., in chambers).

Wheeling Bridge might have offered a measure of finality, or at least guidance. Yet it did nothing of the kind. Trapped in the Court’s makeshift conceptions of our federalism and separation of powers and the growing rift it had opened throughout the nineteenth century between a legal “case” and the ubiquitous “suit in equity,” litigants, lower courts, states, Congress, and the executive branch were all forced to navigate the Court’s unpredictable choices to apply or adopt other law or to reserve for itself the authority to make up the law in rambling opinions.

Try as the Court did to set some legal foundations fixing Congress’s powers and/or the states’ interests in shared waters in the dozens of original jurisdiction controversies that followed Wheeling Bridge, it came up short.¹⁰¹See Colburn, supra note 93, at 240–41; Burke W. Griggs, Interstate Water Litigation in the West: A Fifty-Year Retrospective, 20 U. Denv. Water L. Rev. 153 (2017).

The Court’s unique but limited power to decide for what are otherwise legally immune parties became the chief obstacle. Indeed, the first obstruction case to reach the Court after Willson, Georgetown v. Alexandria Canal Co.,¹⁰²Georgetown v. Alexandria Canal Co., 37 U.S. (12 Pet.) 91 (1838).

was dismissed for a lack of “standing,” or Article III jurisdiction to adjudicate. This is where WOTUS itself falls a bit short. Gardner mistakenly attributes a string citation in Willamette to the claim that Congress, not the Court, may regulate navigability (p. 39). In fact, the citations (which start with Willson) were offered to prove a different proposition: that without the diversity jurisdiction, many of the Court’s major jurisdictional waters precedents would never have been decided.¹⁰³See Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 (1888) (citing Willson, Pollard, Gilman, Pound, and more).

Willamette, indeed, exemplifies this quicksand in the Court’s jurisdictional waters legacy. After a full admission that no “common law” of obstructed navigable rivers existed, that Oregon’s admission statute did not prohibit the bridge, and that no other positive law did either, the Court concluded that the lower courts were without jurisdiction to hear the plaintiff Hatch’s bill in equity.¹⁰⁴See id. at 17.

In short, the case could be no precedent at all because the forum was without jurisdiction to adjudicate.

Not until 1938 would the Court finally hold that neither constitutional nor statutory jurisdiction to hear generally entail authority to prescribe the law.¹⁰⁵Erie R.R. Co. v. Tompkins, 304 U.S. 64, 71, 77–78 (1938) (overruling Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842)).

Congress, not a federal court sitting in diversity, must ordinarily “make” federal law. Even then, interstate waters and maritime law were both firmly excluded from that Erie “revolution,” in what has ever since remained festering doubts about what powers to prescribe the law federal courts—especially the Supreme Court—claim on the water.¹⁰⁶See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938).

Erie’s confident testimonials against federal “general” common law and “what the judge advancing the doctrine thinks at the time should be the general law on a particular subject”¹⁰⁷Erie, 304 U.S. at 78 (quoting Balt. & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 401 (1893) (Field, J., dissenting)).

were diverted around the “equitable apportionment” of interstate waters among the states, which had crept into the Court’s original docket, thanks (in part) to Wheeling Bridge.¹⁰⁸See Colburn, supra note 93, at 241–44. The Court’s maritime law adventures, with their tendency to vacillate between power to prescribe law and professed powerlessness, were famously skewered by Justice Holmes in Southern Pacific Co. v. Jensen, 244 U.S. 205, 218–23 (1917) (Holmes, J., dissenting). These dalliances could have but did not feature in Justice Brandeis’s Erie opinion. Cf. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) (ridiculing the notion that the common law is some “transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute . . . .” (quoting Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting))).

States’ supposed “dignities” entitled them to file equitable actions claiming interests in interstate waters—even if that dignity rarely yielded relief.¹⁰⁹The Court has been notably stingy in providing relief to complaining states. See Colburn, supra note 93, at 242, 246–49.

It would take decades more for that federal judge-made law to meet the Clean Water Act and for the Court to begin sorting out the former’s remnants from what Congress had, by that Act, abrogated.¹¹⁰See Illinois v. City of Milwaukee, 406 U.S. 91 (1972); see also City of Milwaukee v. Illinois, 451 U.S. 304 (1981); Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981); Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987); Arkansas v. Oklahoma, 503 U.S. 91 (1992).

The muddled intertwining of federal and local law on jurisdictional waters was hardly the Court’s work alone. One of the first statutes Congress enacted in 1789 provided that

[A]ll pilots in the bays, inlets, rivers, harbors and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.¹¹¹Act of August 7, 1789, ch. 9, § 4, 1 Stat. 53, 54 (emphasis added). Counsel for Pennsylvania, of course, leaned heavily on this language in the argument in Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 307 (1852).

This was Congress’s first reference to waters “of the United States,” and it was to protect the operation of local law therein. Justice Curtis’s opinion for the Court in Cooley v. Board of Wardens¹¹²Cooley, 53 U.S. 299. Cooley was decided not long after the Court’s fractured opinions in Smith v. Turner (The Passenger Cases), 48 U.S. (7 How.) 283 (1849). One of the several questions briefed and addressed by the justices in those consolidated cases was the extent to which states could exercise any authority over “foreign commerce” at disembarkation ports consistent with Article I. Id. at 302–05, 318–19.

agreed that Pennsylvania’s 1803 statute requiring local pilots for certain vessels on certain rivers was readily reconciled with this federal scheme.¹¹³See Cooley, 53 U.S. at 319–20.

By the late nineteenth century, the provision had regularly shielded state laws from Commerce Clause and other challenges.¹¹⁴See, e.g., Wilson v. McNamee, 102 U.S. 572, 574–75 (1881).

But by 1920, after a century of the Court’s efforts, Congress finally defined a category of “navigable waters of the United States” where local law would be preempted, reaching a laundry list of navigable-in-fact waters and those that could be made navigable.¹¹⁵See Federal Water Power Act, Pub. L. No. 66-280, 41 Stat. 1063 (1920).

That would ultimately spur the Court’s development of a “navigation servitude” to reconcile plenary federal and state powers over navigability while minimizing the property liabilities either created when they prescribed law.¹¹⁶See Gibson v. United States, 166 U.S. 269, 271–72 (1897); United States v. Cress, 243 U.S. 316, 320–21 (1917); United States v. Grand River Dam Auth., 363 U.S. 229, 232–38 (1960).

The Court did more, though, to confuse who could do what, where, and why. Starting in the nineteenth century, the Court heard at least four types of matters where it could opine about the scope and significance of jurisdictional waters. The first raised issues regarding the regulatory authority over navigation, as seen in Gibbons, Willson, Cooley, and The Daniel Ball, which Gardner keys in on (pp. 30–39). The second engaged Article III, Section 2 questions: the geographic scope of admiralty and maritime jurisdiction, punctuated by the rejection of England’s “tidewater” limits in cases like The Propeller Genesee Chief ¹¹⁷The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1852).

and The Montello.¹¹⁸The Montello, 87 U.S. (20 Wall.) 430 (1874).

The third involved the Court’s so-called equal footing and public trust doctrines, begun in Martin v. Waddell,¹¹⁹Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842).

Pollard v. Hagan,¹²⁰Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845).

and Illinois Central Railroad Co. v. Illinois.¹²¹Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892).

Finally, the Court regularly construed “navigable waters” named in statutes admitting new states¹²²See, e.g., Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888); Huse v. Glover, 119 U.S. 543, 547–48 (1886); Hamilton v. Vicksburg, Shreveport & Pac. R.R. Co. 119 U.S. 280 (1886); Cardwell v. Am. Bridge Co., 113 U.S. 205 (1885); R.R. Co. v. Schurmeir, 74 U.S. (7 Wall.) 272 (1869); Withers v. Buckley, 61 U.S. (20 How.) 84 (1858).

and the consequent riparian or littoral title holders’ and interstate boundaries disputes therein.¹²³See, e.g., Shively v. Bowlby, 152 U.S. 1 (1894); Nebraska v. Iowa, 143 U.S. 359 (1892); Goodtitle v. Kibbe, 50 U.S. (9 How.) 471 (1850). These cases have a convoluted origin story, but they have matured into a considerable legacy. First, the Court held in Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838), that interstate border disputes could be “cases” or “controversies” within the meaning of Article III and the Judiciary Act of 1789. Id. at 722–31. Second, in Alabama v. Georgia, 64 U.S. (23 How.) 505, 515 (1860), the Court held that, in its original jurisdiction involving such a dispute, it was the Court’s role to construe what constituted a river’s “bank” as a territorial boundary. Finally, in South Carolina v. Georgia, 93 U.S. 4 (1876), the Court decided for itself that a shared boundary river (the Savannah) could be diverted to alter its navigability, either by congressional permission to do so or even, arguably, without. See id. at 12–14.

It is easy to lump those four together. Each presented similarly challenging questions of fact and law, as able commentators have long traced.¹²⁴Major engagements include Maureen E. Brady, Defining “Navigability”: Balancing State-Court Flexibility and Private Rights in Waterways, 36 Cardozo L. Rev. 1415 (2015); Robert W. Adler, The Ancient Mariner of Constitutional Law: The Historical, Yet Declining Role of Navigability, 90 Wash. U. L. Rev. 1643 (2013); Daniel J. Hulsebosch, Writs to Rights: “Navigability” and the Transformation of the Common Law in the Nineteenth Century, 23 Cardozo L. Rev. 1049 (2002); Glenn J. MacGrady, The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don’t Hold Water, 3 Fla. St. L. Rev. 511 (1975); and Merritt Starr, Navigable Waters of the United States—State and National Control, 35 Harv. L. Rev. 154 (1921).

It would be naïve to do so, however, given the distinct legal consequences each entails—how each determines jurisdiction to hear, jurisdiction to prescribe, and redistributions of either or both. Their horizontal and vertical dimensions intersect distinctly. As the Court has reshaped its approaches to “navigable waters,” the domains of state versus federal law have shifted, the domain of Court versus Congress (or the Executive) has shifted, and the availability of a state or federal forum has shifted. Each of those shifts has been and will remain a powerful factor in how any judge decides.

An improved cataloging of jurisdictional waters variants reveals how derelict the Court has been—and, if Sackett is any indication, how derelict it will remain—in managing the horizontal and vertical choices of law that those variants have raised and doing so with either exactitude or equanimity toward Congress, the Executive, or the states. Each variant contains some (at least minimal) basis in the Constitution (authorizing, requiring, or forbidding), and some (at least minimal) basis in statutes, basis in judge-made law, or a combination thereof. Finally, each variant arises at a specific time in history. Each fits within continuing, often punctuated, coevolutions in the Court’s opinions construing the Constitution, federal statutes, federal judge-made law, and each of the foregoing categories’ state counterparts. Without more precision, in short, the Court will remain free to manipulate the horizontal and vertical intersections as the peculiarities of each case impel it to do so. This may be convenient for the Court. But it is decidedly less so for everyone else.

Compare, for example, an action from admiralty to one from the states’ title to submerged lands. In United States v. Bevans,¹²⁵United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818).

a marine, John Bevans, was federally prosecuted for a murder he allegedly committed aboard his ship docked in Boston Harbor under the Crimes Act of 1790.¹²⁶Act of April 30, 1790, ch. 9, § 8, 1 Stat. 112.

The Act gave federal courts jurisdiction over murders committed “upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state . . . .”¹²⁷Bevans, 16 U.S. at 376 (quoting Act of April 30, 1790, 1 Stat. 112, 113).

In reversing Justice Story, who had heard the case below while riding circuit, Chief Justice Marshall held that the harbor was “unquestionably within the original territory of Massachusetts,” and thus that jurisdiction had not been conferred by the Crimes Act.¹²⁸Id. at 387 (emphasis added).

In response to counsel, Chief Justice Marshall also held that Article III’s admiralty and maritime clause did not by itself confer jurisdiction.¹²⁹See id. at 388–89.

The murder conviction, thus, was invalid for want of jurisdiction.¹³⁰See id. at 391.

Bevans was one of the first orderings of jurisdiction to adjudicate based on the locality of waters.¹³¹See United States v. Bevans, 24 F. Cas. 1138 (C.C.D. Mass. 1816) (No. 14,589); cf. Bevans, 16 U.S. at 389 (“As the powers of the respective governments now stand, if two citizens of Massachusetts step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction, and punishable by the laws of Massachusetts?”).

Decided in 1818, it was mostly bereft of any relevant precedent construing Congress’s Article I powers, Article III admiralty’s locality, or that of the Crimes Act. By the end of the century, though, the Court had held that Article III, Section 2’s grant of jurisdiction, anchored by the marine locale, provided Congress the power to legislate substantive maritime law to the exclusion of state legislation.¹³²See The Lottawanna, 88 U.S. (21 Wall.) 558, 577 (1875); Butler v. Bos. & Savannah S.S. Co., 130 U.S. 527, 557 (1889).

Now consider a counterpart that arose decades later in Smith v. Maryland.¹³³Smith v. Maryland, 59 U.S. (18 How.) 71 (1855).

Applying a Maryland statute restricting gear and seasons for oystering, the Court held that the Chesapeake Bay waters where the offending vessel was seized were also waters of the state.¹³⁴See id. at 74–75. Here, too, the Court adjudicated the vessel master’s claim that the Maryland law was “repugnant” to the Commerce Clause and/or Congress’s coasting statutes. See id. at 74.

The Chesapeake’s vast waters adjacent to Maryland’s coast, according to the Court, were a fully proper locale for the state to seize a vessel.¹³⁵See id. at 75–76 (“To inflict a forfeiture of a vessel on account of the misconduct of those on board,—treating the thing as liable to forfeiture, because the instrument of the offence is within established principles of legislation, which have been applied by most civilized governments.”).

This came after the Court had overruled The Steam-Boat Thomas Jefferson and other tidewater precedents in The Propeller Genesee Chief ¹³⁶The Propeller Genesee Chief, 53 U.S. (12 How.) 443 (1852).

and The Eagle,¹³⁷The Eagle, 75 U.S. (8 Wall.) 15, 20 (1869).

holding that Section 9 of the Judiciary Act of 1789¹³⁸Judiciary Act of 1789, ch. 20, 1 Stat. 73, 77.

had conferred admiralty jurisdiction upon the lower federal courts over all navigable-in-fact inland waters¹³⁹The Genesee Chief, 53 U.S. at 456–58 (construing Judiciary Act of 1789, ch. 20, § 9, 1 Stat. at 76–77); see also Fretz v. Bull, 53 U.S. (12 How.) 466 (1852).

but before it held in The Moses Taylor ¹⁴⁰The Moses Taylor, 71 U.S. (4 Wall.) 411 (1867).

and The Hine v. Trevor ¹⁴¹The Hine v. Taylor, 71 U.S. (4 Wall.) 555 (1867).

that that same provision’s in rem jurisdiction over vessels was exclusive of the state courts.¹⁴²See The Moses Taylor, 71 U.S. at 428–31; The Hine, 71 U.S. at 568.

In short, the intersecting vertical and horizontal choices of law were the product of the waters’ precise locale and the timing of their appearance before the Court. For all that is evident in the Supreme Court’s latest majority opinions or in WOTUS, however, this extreme particularism is essentially invisible.

Things were arguably worse in the realm of states’ ownership of lands underlying their “navigable waters.” What began in 1845 as a reflection of states’ entry to the Union on an “equal footing” with the original thirteen in Pollard v. Hagan,¹⁴³Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845) (upholding state title to lands once inundated by tidal waters of Mobile Bay).

saving to Alabama those submerged lands once inundated by the tide,¹⁴⁴See id. at 229–30 (“To maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding.”).

eventually expanded to include submerged lands beneath Lake Michigan’s navigable-in-fact waters in Illinois Central.¹⁴⁵See Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 436–37 (1892); see also Barney v. Keokuk, 94 U.S. 324, 338 (1877); Shively v. Bowlby, 152 U.S. 1, 40–53 (1894). In Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 319, 324–25 (1973), and in Hughes v. Washington, 389 U.S. 290, 292 (1967), the Court suggested that federal statutes and, barring an applicable federal statute, federal common law should decide navigability-for-title even poststatehood. Several subsequent decisions were, then, forced to confront the relevance and timing of “navigable-in-fact” determinations and the choices of law that turned on them. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 477–84 (1988).

When the Court later held that, following statehood, state law of navigability must define title as between the state, riparians, and any poststatehood transferees,¹⁴⁶Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 373–83 (1977).

whether federal or state law determined one’s title fell to the precise locale and origin of that title. And all of that was decided before the twentieth-century contests over the marginal seas and certain novel claims involving prestatehood grants from the United States on their shores.¹⁴⁷See Borax Consol., Ltd. v. Los Angeles, 296 U.S. 10, 15–21 (1935); United States v. California, 332 U.S. 19 (1947); United States v. Texas, 339 U.S. 707 (1950); Choctaw Nation v. Oklahoma, 397 U.S. 620, 635 (1970); United States v. Alaska, 521 U.S. 1 (1997).

By then, of course, the “equal footing” doctrine had been invoked for decades to level up the later-admitted states’ power to obstruct and manipulate “navigable waters” to like degree as the original thirteen had—whether those waters were navigable-in-fact or ever claimed by Crown or Parliament.¹⁴⁸See Barney, 94 U.S. at 338 (noting the states’ “inherent sovereignty” over their waters and that the United States had “wisely abstained” from the matter); see also Econ. Light & Power Co. v. United States, 256 U.S. 113, 118–21 (1921); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 10 (1888); Huse v. Glover, 119 U.S. 543, 546–48 (1886); Cardwell v. Am. Bridge Co., 113 U.S. 205, 210–11 (1885).

A fully four-dimensional accounting of jurisdictional waters in the nineteenth century would reveal why it was the dissent in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers,¹⁴⁹Solid Waste Agency of N. Cook Cnty. v. Army Corps of Eng’rs, 531 U.S. 159 (2001).

the Court’s first denial of Clean Water Act applicability to waters, that invoked navigability’s early underpinnings.¹⁵⁰See id. at 177 (Stevens, J., dissenting).

Quite simply, that history is one of many pliant doctrines elaborated piecemeal in deference to Congress with rare asides in the states’ favor.¹⁵¹See supra Parts I, II.

By the time Sackett was decided twenty-two years later, Justice Thomas had claimed the period as his own in iconoclastic concurrences like that in United States v. Lopez ¹⁵²United States v. Lopez, 514 U.S. 549, 593–602 (1995) (Thomas, J., concurring).

and Dobbs v. Jackson Women’s Health Org.,¹⁵³Dobbs v. Jackson Women’s Health Org., 143 S. Ct. 2228, 2300 (2022) (Thomas, J., concurring).

as well as in activist opinions for majorities in Franchise Tax Board v. Hyatt ¹⁵⁴Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485 (2019).

and New York State Rifle & Pistol Ass’n v. Bruen.¹⁵⁵N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).

To Justice Thomas, Sackett was simply an occasion to revisit an era of limited federal power. But that history is nothing of the sort. It is a record of indecision by the Court, wavering between state and federal powers to prescribe law, state and federally provided forums, and state and federal choice of law principles by which to achieve legal justice in a compound, multisovereign system.

Gardner indirectly skewers the Court’s late standing doctrines which have now yielded a river of state-led challenges to any executive branch policy change that half the country dislikes.¹⁵⁶Pp. 119–26, 134–38. Cf. Ann Woolhandler & Michael G. Collins, Reining in State Standing, 94 Notre Dame L. Rev. 2015, 2024–25 (2019) (calling the Court’s standing doctrines “ill-suited” to states).

In the challenges to the Obama Clean Water Rule, the Sixth Circuit issued a national “stay,” before even finding that North Dakota and other states had standing (p. 124). Faking a forum’s jurisdiction to hear in order to deny a coequal branch’s jurisdiction to prescribe is beyond obtuse. Such a flimflam from the Sixth Circuit backing a nationwide injunction was too much even for the Supreme Court.¹⁵⁷See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 629 (2018).

The Obama rule eventually met its fate in the Trump Administration’s repeal. The Act itself would await Sackett’s return trip to the Court.

Sackett was, if nothing else, this Supreme Court’s cri de coeur, slashing back at what it no doubt sees as creeping tyranny-by-permit. Yet, as Gardner emphasizes overall, that majority seems content to leave even the simplest questions about our jurisdictional waters unanswered. Which rivers and tributaries, for example, are truly “intrastate” for jurisdictional purposes? The Susquehanna’s west branch is located wholly within Pennsylvania. If it were to be renamed something else (recall the Willamette), would it then be jurisdictionally severable from the river supplying the Chesapeake Bay with over half its fresh water?¹⁵⁸Coincidentally, Pennsylvania’s courts were the first and most emphatic to reject the English tidewater doctrine, keeping for the state the beds and banks of all navigable waters, early in the nineteenth century. See Carson v. Blazer, 2 Binn. 475 (Pa. 1810).

The smaller Chemung River, an upstream tributary, rises in New York and joins the Susquehanna just over the Pennsylvania border, presumably making it jurisdictionally interstate. Should accidents of naming really determine the Clean Water Act’s applicability? Should they decide anything about our waters under the law?

Conclusion

Rivers and estuaries are valued and devalued today by means far beyond European imperial thinking. At our nation’s origin, the navigability of our waters was their principal public value, as the Northwest Ordinance and Paris Peace Treaty affirmed.¹⁵⁹See Richard B. Morris, The Durable Significance of the Treaty of 1783, in Peace and the Peacemakers: The Treaty of 1783, at 230, 232 (Ronald Hoffman & Peter J. Albert eds., 1986); Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52 (adopting Northwest Ordinance of 1787).

Their navigation was generally from the bottom up, making the lower reaches the most valued, the most trafficked, and the most strategically vital. Today, as pollution and other degradations accumulate the farther downstream one travels, and as inland commercial navigation becomes a vestige of a bygone era, the most cherished parts of our rivers tend to be upstream—navigable or not—and reflect the tributaries and wetlands from whence they spring. Sadly, the current Court behaves as if it is entitled to toy with electorates and their waters, swaying back and forth between Federalist and Republican leanings. Neither would be unworkable for conservation, per se, if the Court had ever finally settled any of the many jurisdictional issues lurking beneath the waters of the United States. Barring that, more candor from the Court about its own past misadventures would be a good start. Gardner’s Waters of the United States is a sobering run through the darkly comedic opera of our jurisdictional waters and a reminder that such candor has long been in vanishingly short supply.

* A. Robert Noll Distinguished Professor of Law, The Pennsylvania State University.