On a late summer evening, I stood in the rain in the park near my house, waiting for the dog to pee and watching the waters uncharacteristically fill the riprap-laden ditch that runs through the center of the park. They pushed the leaves and trash downstream, flowing around shopping carts and discarded appliances and nudging discarded clothes and garbage bags toward the river. I saw a coyote, patchy with mange, run along the edge of the waterway. Maybe, I thought, the waters disturbed its usual haunts in the ditch and forced it on to the banks.
Later that evening, my husband called to say the Santa Fe River was running.
Although its dammed upstream reaches provide the city with water, the river here is elusive. Downtown, it takes the form of a widely ignored ditch, a dozen feet below street level and a few feet wide. Hundreds of tourists likely walk beside it or drive above it without ever realizing they’ve forded the Santa Fe River. It’s usually damp, sometimes trickling.
On our side of town, out where the trees fade and the small farms and working-class suburbs begin, the river is just a dry sandy cut between neighborhoods. But during the spring melt and the summer monsoons, officials sometimes let water slip past its two dams in the hills above the city, and the river rises from its subterranean groundwaters and flows. I’ve never seen it make it all the way to the Rio Grande, its final destination; it always fades back underground before then. But when it runs, we go see it; we say hello and touch the water. It’s hard to capture the thrill of watching a few inches of water push its way down the sand, around the occasional boulders and past the suddenly shockingly green bushes that line its path.
We mark the seasons by its rare appearances and more common disappearances — its high summer form as a hot, dry strip of sand or its fall form, covered in branches and dead leaves. My husband found records of it once carrying enough water in winter to ice skate on, but not anymore. To us, it’s The River. However, legally, mercurial waterways like this one sit in a liminal space.
What is a waterway? Can that term encompass paths across the landscape that are only occasionally wet? For decades federal courts and presidential administrations have decided yes and then no and then yes again.
No one, not the courts or federal agencies like the U.S. Environmental Protection Agency or the Army Corps of Engineers, can seem to resolve the question for good. In 2006, the late Justice Antonin Scalia, writing the court’s decision to limit the definition of a waterway, famously mocked the idea of water in the desert, detailing all the instances of lower courts upholding seemingly ludicrous water bodies. “Most implausibly,” he wrote, they’d supported treating as waterways “‘washes and arroyos’ of an ‘arid development site,’ located in the middle of the desert, through which ‘water courses … during periods of heavy rain.’”
To us, it’s The River. However, legally, mercurial waterways like this one sit in a liminal space.
If you think legal opinions need to be sober and even-keeled, Scalia’s shows the possibility for sarcastic, even scornful legal analysis. It also showed the possibility for two people to have incredibly different life experiences: East Coast born and bred, Justice Scalia clearly knew a kind of waterbody I had rarely encountered. And he never seemed to have met any of the rivers and creeks and arroyos I knew. His definition excluded my local ditch, of course, but likely also the Santa Fe River and much of the Los Angeles River watershed. It would also exclude about 90% of the water bodies in New Mexico, including ones that feed the state’s agriculture, act as sites of worship and offer a chance for a quick dunk during June hot spells.
One winter, when I lived in a small, dry farm town in western Colorado, my friend and I made a pact: We were going to swim in a wild body of water and ski every month of the year. But we were busy and our standards were low and we lived at the edge of the desert. Very quickly we began to interpret all the terms of our promise far more loosely than Justice Scalia would have liked. We skied a lovely finger of snow in the mountains above town and then stripped in order to lie down in the 4-inch-deep river — “wild” — that flowed out of it. If we could get our faces under, my friend reasoned, it counted. We accomplished this by lying face-down until we ran out of breath — “swimming.” Once we were dressed and warm, we drove back to town, where the river tapered to a small sliver of frozen water that wound between mud and rocks.
By the end of the year, I’d mostly skied a dirty patch of snow 30 minutes outside of town and 100 yards long. And we’d done most of our swimming in an agricultural ditch that ran behind my friend’s house. When I read Scalia’s scorn for the now-you-see-them-now-you-don’t nature of arid waterways, I considered how those two unimpressive, ephemeral bodies of water had transformed the way I think about connecting with the places we live.
The ditch we relied on for our summer swims feeds roughly 15,000 acres of farms and ranches. It was carved into the hillside relatively recently, first as a small conduit for river water and later as one for water from Paonia Reservoir, built upstream in the 1950s. When it eventually dries up from the sedimentation filling the reservoir or a nasty fight over water rights, its lineage will have existed for only a few decades, a bit more than a century. Each fall, we’d watch it fade into a corridor of mud and dead plants when the water from the reservoir stopped flowing. Then, each spring, we’d see the same mud-laden creature return, its murky waters flowing the same slow-moving path each year, with the same concrete-channeled patterns.
The dirty snow patch, however, seemed like a new creature every year. It grew, lived, and died in the same ecosystem where it was born, the same ecosystem where every one of its ancestors had been born since long before the ditch was ever built. Its borders changed slightly from year to year and month to month. Sometimes it became a hard, icy rhombus tucked against the base of the cliff. Other times it softened, warmed by the sun, and sprawled across the meadow, pockmarked with grasses pushing through. And in the high months of summer, it left an indentation filled with an unusually verdant swath of wildflowers. Each time I got ready to ski it, I felt a little nervous buzz. What surprises did it hold? What would it be like? Would it even still be there, or would it have migrated downstream into the reservoir, to rest for the winter, before flowing through the concrete-lined ditch?
In his opinion, Justice Scalia argued that his definition of a body of water — flowing, big, always wet, never dry — was, ultimately, the only natural one, the one any reasonable thinking person could agree on. It was simple, he seemed to say; this category is clear. It casts the world’s topography as bounded things. A geographic feature — water — is one thing and not another: land. It’s certainly not two things at once: wet and dry, there and not. And there’s certainly a compelling human logic to it. Daily life is full of messy decisions; wouldn’t it be nice if someone out there had a clear explanation and some order to impose on it?
A geographic feature — water — is one thing and not another: land. It’s certainly not two things at once: wet and dry, there and not.
But this logic is a kind of intellectual cheat code: It attempts to cut a straight path through what is, in fact, a labyrinth you just have to steadily make your way through. This applies to more than just water; most aspects of geography defy straightforward categorization. Don’t think too long, for example, about what constitutes a mountain. And certainly don’t raise that question with someone from another part of the country, unless you are looking for hours of debate. A category that includes the Appalachians and the Rockies, but excludes the Black Hills, is certainly not one with clear boundaries any reasonable person can easily define. I’m not saying you can’t define these things, just that you might have to put up with a little more shiftiness than Justice Scalia seemed comfortable with.
I am trying out a wobbly definition of water these days. To me, a body of water is one that changes, that moves around and adapts to the weather, that has a life and a force of its own. It’s the snow patch, adapting its shape to temperature and sun angle and precipitation. It’s the Santa Fe River, unexpectedly flowing in February when the snows melt too quickly, or in August when the monsoons come, or like this spring, during a big snow year and a wet spring and the whole town comments on it: The river is flowing.
This essay is from a chapter from the forthcoming book (October 2024) Water Bodies: Love Letters to the Most Abundant Substance on Earth from Torrey House Press edited by Laura Paskus.
We welcome reader letters. Kate Schimel is the news and investigations editor for High Country News. Email her at kateschimel@hcn.org or submit a letter to the editor. See our letters to the editor policy.
This article appeared in the print edition of the magazine with the headline What is a waterway?.
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