{"id":259202,"date":"2023-05-26T15:37:44","date_gmt":"2023-05-26T13:37:44","guid":{"rendered":"https:\/\/climatescience.press\/?p=259202"},"modified":"2023-05-26T15:37:47","modified_gmt":"2023-05-26T13:37:47","slug":"victory-supreme-court-reins-in-epa-on-waters-of-the-united-states-read-the-full-opinion","status":"publish","type":"post","link":"https:\/\/climatescience.press\/?p=259202","title":{"rendered":"Victory! Supreme Court reins in EPA on Waters of the United States \u2014 Read the full opinion"},"content":{"rendered":"\n
\"\"<\/figure>\n\n\n\n

<\/p>\n\n\n\n

From\u00a0CFACT<\/a><\/p>\n\n\n\n

By\u00a0CFACT Ed<\/a>\u00a0<\/p>\n\n\n\n

SUPREME COURT OF THE UNITED STATES<\/strong>
Syllabus<\/strong>
SACKETT ET UX. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.<\/strong>
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT<\/strong><\/p>\n\n\n\n

No. 21\u2013454. Argued October 3, 2022\u2014Decided May 25, 2023
Petitioners Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for building a home. The Environmental Protection Agency informed the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act, which prohibits dischargingpollutants into \u201cthe waters of the United States.\u201d 33 U. S. C. \u00a71362(7).The EPA ordered the Sacketts to restore the site, threatening penaltiesof over $40,000 per day. The EPA classified the wetlands on the Sacketts\u2019 lot as \u201cwaters of the United States\u201d because they were near a ditchthat fed into a creek, which fed into Priest Lake, a navigable, intrastatelake. The Sacketts sued, alleging that their property was not \u201cwatersof the United States.\u201d The District Court entered summary judgment for the EPA. The Ninth Circuit affirmed, holding that the CWA covers wetlands with an ecologically significant nexus to traditional navigable waters and that the Sacketts\u2019 wetlands satisfy that standard.
Held: The CWA\u2019s use of \u201cwaters\u201d in \u00a71362(7) refers only to \u201cgeographic[al] features that are described in ordinary parlance as \u2018streams, oceans, rivers, and lakes\u2019 \u201d and to adjacent wetlands that are\u201cindistinguishable\u201d from those bodies of water due to a continuous surface connection. Rapanos v. United States, 547 U. S. 715, 755, 742, 739 (plurality opinion). To assert jurisdiction over an adjacent wetland under the CWA, a party must establish \u201cfirst, that the adjacent [body of water constitutes] . . . \u2018water[s] of the United States\u2019 (i.e., a relativelypermanent body of water connected to traditional interstate navigablewaters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the \u2018water\u2019 ends and the \u2018wetland\u2019 begins.\u201d Ibid. Pp. 6\u201328.
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(a)
The uncertain meaning of \u201cthe waters of the United States\u201d has been a persistent problem, sparking decades of agency action and litigation. Resolving the CWA\u2019s applicability to wetlands requires a review of the history surrounding the interpretation of that phrase. Pp. 6\u201314.
(1)
During the period relevant to this case, the two federal agencies charged with enforcement of the CWA\u2014the EPA and the Army Corps of Engineers\u2014similarly defined \u201cthe waters of the United States\u201d broadly to encompass \u201c[a]ll . . . waters\u201d that \u201ccould affect interstate or foreign commerce.\u201d 40 CFR \u00a7230.3(s)(3). The agencies likewise gave an expansive interpretation of wetlands adjacent to those waters, defining \u201cadjacent\u201d to mean \u201cbordering, contiguous, or neighboring.\u201d \u00a7203.3(b). In United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, the Court confronted the Corps\u2019 assertion of authorityunder the CWA over wetlands that \u201cactually abut on a navigablewaterway.\u201d Id., at 135. Although concerned that the wetlands fell outside \u201ctraditional notions of \u2018waters,\u2019 \u201d the Court deferred to the Corps, reasoning that \u201cthe transition from water to solid ground is not necessarily or even typically an abrupt one.\u201d Id., 132\u2013133. Following Riverside Bayview, the agencies issued the \u201cmigratory bird rule,\u201d extending CWA jurisdiction to any waters or wetlands that \u201care or would be used as [a] habitat\u201d by migratory birds or endangered species. 53 Fed. Reg. 20765. The Court rejected the rule after the Corps sought to apply it to several isolated ponds located wholly within the State of Illinois, holding that the CWA does not \u201cexten[d] to ponds that are notadjacent to open water.\u201d Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168 (SWANCC) (emphasis deleted). The agencies responded by instructing their field agents to determine the scope of the CWA\u2019s jurisdiction on a case-by-case basis.Within a few years, the agencies had \u201cinterpreted their jurisdictionover \u2018the waters of the United States\u2019 to cover 270-to-300 million acres\u201d of wetlands and \u201cvirtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.\u201d Rapanos, 547 U. S., at 722 (plurality opinion).
Against that backdrop, the Court in Rapanos vacated a lower court decision that had held that the CWA covered wetlands near ditches and drains that emptied into navigable waters several miles away. As to the rationale for vacating, however, no position in Rapanos commanded a majority of the Court. Four Justices concluded that the CWA\u2019s coverage was limited to certain relatively permanent bodies of water connected to traditional interstate navigable waters and to wetlands that are \u201cas a practical matter indistinguishable\u201d from those waters. Id., at 755 (emphasis deleted). Justice Kennedy, concurring onlyin the judgment, wrote that CWA jurisdiction over adjacent wetlands
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requires a \u201csignificant nexus\u201d between the wetland and its adjacentnavigable waters, which exists when \u201cthe wetlands, either alone or incombination with similarly situated lands in the region, significantlyaffect the chemical, physical, and biological integrity\u201d of those waters. Id., at 779\u2013780. Following Rapanos, field agents brought nearly allwaters and wetlands under the risk of CWA jurisdiction by engaging in fact-intensive \u201csignificant-nexus\u201d determinations that turned on a lengthy list of hydrological and ecological factors.
Under the agencies\u2019 current rule, traditional navigable waters, interstate waters, and the territorial seas, as well as their tributaries and adjacent wetlands, are waters of the United States. See 88 Fed. Reg. 3143. So too are any \u201c[i]ntrastate lakes and ponds, streams, orwetlands\u201d that either have a continuous surface connection to categorically included waters or have a significant nexus to interstate or traditional navigable waters. Id., at 3006, 3143. Finding a significantnexus continues to require consideration of a list of open-ended factors. Ibid. Finally, the current rule returns to the agencies\u2019 longstanding definition of \u201cadjacent.\u201d Ibid. Pp. 6\u201312.
(2)
Landowners who even negligently discharge pollutants intonavigable waters without a permit potentially face severe criminal and civil penalties under the Act. As things currently stand, the agencies maintain that the significant-nexus test is sufficient to establish jurisdiction over \u201cadjacent\u201d wetlands. By the EPA\u2019s own admission, nearly all waters and wetlands are potentially susceptible to regulation underthis test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt. Pp. 12\u201314.
(b)
Next, the Court considers the extent of the CWA\u2019s geographical reach. Pp. 14\u201322.
(1)
To make sense of Congress\u2019s choice to define \u201cnavigable waters\u201d as \u201cthe waters of the United States,\u201d the Court concludes that the CWA\u2019s use of \u201cwaters\u201d encompasses \u201conly those relatively permanent,standing or continuously flowing bodies of water \u2018forming geographic[al] features\u2019 that are described in ordinary parlance as \u2018streams, oceans, rivers, and lakes.\u2019 \u201d Rapanos, 547 U. S., at 739 (plurality opinion). This reading follows from the CWA\u2019s deliberate use ofthe plural \u201cwaters,\u201d which refers to those bodies of water listed above, and also helps to align the meaning of \u201cthe waters of the United States\u201d with the defined term \u201cnavigable waters.\u201d More broadly, this reading accords with how Congress has employed the term \u201cwaters\u201d elsewhere in the CWA\u2014see, e.g., 33 U. S. C. \u00a7\u00a71267(i)(2)(D), 1268(a)(3)(I)\u2014and in other laws\u2014see, e.g., 16 U. S. C. \u00a7\u00a7745, 4701(a)(7). This Court has understood CWA\u2019s use of \u201cwaters\u201d in the same way. See, e.g., Riverside Bayview, 474 U. S., at 133; SWANCC, 531 U. S., at 168\u2013169, 172.
The EPA\u2019s insistence that \u201cwater\u201d is \u201cnaturally read to encompass
4 SACKETT v. EPA
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wetlands\u201d because the \u201cpresence of water is \u2018universally regarded as the most basic feature of wetlands\u2019 \u201d proves too much. Brief for Respondents 19. It is also tough to square with SWANCC\u2019s exclusion of isolated ponds or Riverside Bayview\u2019s extensive focus on the adjacencyof wetlands to covered waters. Finally, it is difficult to see how the States\u2019 \u201cresponsibilities and rights\u201d in regulating water resources would remain \u201cprimary\u201d if the EPA had such broad jurisdiction.\u00a71251(b). Pp. 14\u201318.
(2) Statutory context shows that some wetlands nevertheless qualify as \u201cwaters of the United States.\u201d Specifically, \u00a71344(g)(1), which authorizes States to conduct certain permitting programs, specifies that discharges may be permitted into any waters of the United States, except for traditional navigable waters, \u201cincluding wetlands adjacent thereto,\u201d suggesting that at least some wetlands must qualifyas \u201cwaters of the United States.\u201d But \u00a71344(g)(1) cannot define what wetlands the CWA regulates because it is not the operative provisionthat defines the Act\u2019s reach. Instead, the reference to adjacent wetlands in \u00a71344(g)(1) must be harmonized with \u201cthe waters of the United States,\u201d which is the operative term that defines the CWA\u2019s reach. Because the \u201cadjacent\u201d wetlands in \u00a71344(g)(1) are \u201cinclud[ed]\u201dwithin \u201cwaters of the United States,\u201d these wetlands must qualify as \u201cwaters of the United States\u201d in their own right, i.e., be indistinguishably part of a body of water that itself constitutes \u201cwaters\u201d under the CWA. To hold otherwise would require implausibly concluding thatCongress tucked an important expansion to the reach of the CWA into convoluted language in a relatively obscure provision concerning state permitting programs. Understanding the CWA to apply to wetlands that are distinguishable from otherwise covered \u201cwaters of the UnitedStates\u201d would substantially broaden \u00a71362(7) to define \u201cnavigable waters\u201d as \u201cwaters of the United States and adjacent wetlands.\u201d But \u00a71344(g)(1)\u2019s use of the term \u201cincluding\u201d makes clear that it does not purport to do any such thing. It merely reflects Congress\u2019s assumptionthat certain \u201cadjacent\u201d wetlands are part of the \u201cwaters of the UnitedStates.\u201d
To determine when a wetland is part of adjacent \u201cwaters of theUnited States,\u201d the Court agrees with the Rapanos plurality that the use of \u201cwaters\u201d in \u00a71362(7) may be fairly read to include only wetlands that are \u201cindistinguishable from waters of the United States.\u201d This occurs only when wetlands have \u201ca continuous surface connection to bodies that are \u2018waters of the United States\u2019 in their own right, so that there is no clear demarcation between \u2018waters\u2019 and wetlands.\u201d 547
U. S., at 742. In sum, the CWA extends to only wetlands that are \u201cas a practical
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matter indistinguishable from waters of the United States.\u201d This requires the party asserting jurisdiction to establish \u201cfirst, that the adjacent [body of water constitutes] . . . \u2018water[s] of the United States\u2019 (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the \u2018water\u2019 ends and the \u2018wetland\u2019 begins.\u201d Rapanos, 547 U. S., at 755, 742. Pp. 18\u201322.
(c)
The EPA asks the Court to defer to its most recent rule providing that \u201cadjacent wetlands are covered by the [CWA] if they \u2018possess a significant nexus to\u2019 traditional navigable waters\u201d and that wetlandsare \u201cadjacent\u201d when they are \u201cneighboring\u201d to covered waters. Brief for Respondents 32, 20. For multiple reasons, the EPA\u2019s position lacks merit. Pp. 22\u201327.
(1)
The EPA\u2019s interpretation is inconsistent with the CWA\u2019s textand structure and clashes with \u201cbackground principles of construction\u201dthat apply to the interpretation of the relevant provisions. Bond v. United States, 572 U. S. 844, 857. First, \u201cexceedingly clear language\u201dis required if Congress wishes to alter the federal\/state balance or theGovernment\u2019s power over private property. United States Forest Service v. Cowpasture River Preservation Assn., 590 U. S. ___, ___. The Court has thus required a clear statement from Congress when determining the scope of \u201cthe waters of the United States.\u201d Second, the EPA\u2019s interpretation gives rise to serious vagueness concerns in lightof the CWA\u2019s criminal penalties, thus implicating the due process requirement that penal statutes be defined \u201c \u2018with sufficient definiteness that ordinary people can understand what conduct is prohibited.\u2019 \u201d McDonnell v. United States, 579 U. S. 550, 576. Where penal statutes could sweep broadly enough to render criminal a host of what might otherwise be considered ordinary activities, the Court has been waryabout going beyond what \u201cCongress certainly intended the statute tocover.\u201d Skilling v. United States, 561 U. S. 358, 404. Under these two principles, the judicial task when interpreting \u201cthe waters of the United States\u201d is to ascertain whether clear congressional authorization exists for the EPA\u2019s claimed power. Pp. 22\u201325.
(2)
The EPA claims that Congress ratified the EPA\u2019s regulatory definition of \u201cadjacent\u201d when it amended the CWA to include the reference to \u201cadjacent\u201d wetlands in \u00a71344(g)(1). This argument fails for at least three reasons. First, the text of \u00a7\u00a71362(7) and 1344(g) shows that \u201cadjacent\u201d cannot include wetlands that are merely nearby covered waters. Second, EPA\u2019s argument cannot be reconciled with this Court\u2019s repeated recognition that \u00a71344(g)(1) \u201c \u2018does not conclusivelydetermine the construction to be placed on . . . the relevant definition of \u201cnavigable waters.\u201d \u2019 \u201d SWANCC, 531 U. S., at 171. Third, the EPA
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falls short of establishing the sort of \u201coverwhelming evidence of acquiescence\u201d necessary to support its argument in the face of Congress\u2019s failure to amend \u00a71362(7). Finally, the EPA\u2019s various policy arguments about the ecological consequences of a narrower definition of \u201cadjacent\u201d are rejected. Pp. 25\u201327.
8 F. 4th 1075, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, GORSUCH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment, in which SOTOMAYOR and JACKSON, JJ., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543,\u00a0pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 21\u2013454
MICHAEL SACKETT, ET UX., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 25, 2023]
JUSTICE ALITO delivered the opinion of the Court.
This case concerns a nagging question about the outer reaches of the Clean Water Act (CWA), the principal federal law regulating water pollution in the United States.1 By all accounts, the Act has been a great success. Before its enactment in 1972, many of the Nation\u2019s rivers, lakes, andstreams were severely polluted, and existing federal legislation had proved to be inadequate. Today, many formerlyfetid bodies of water are safe for the use and enjoyment of the people of this country.
There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act\u2019s geographical reach have been uncertain from the start. The Act applies to \u201cthe waters of the United States,\u201d but what does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach \u201cmudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?\u201d2 How about ditches, swimming pools, and puddles? \u2014\u2014\u2014\u2014\u2014\u2014
186 Stat. 816, as amended, 33 U. S. C. \u00a71251 et seq.
240 CFR \u00a7230.3(s)(3) (2008).
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For more than a half century, the agencies responsible for enforcing the Act have wrestled with the problem andadopted varying interpretations. On three prior occasions,this Court has tried to clarify the meaning of \u201cthe waters ofthe United States.\u201d But the problem persists. When we last addressed the question 17 years ago, we were unable to agree on an opinion of the Court.3 Today, we return to the problem and attempt to identify with greater clarity whatthe Act means by \u201cthe waters of the United States.\u201d
I A
For most of this Nation\u2019s history, the regulation of waterpollution was left almost entirely to the States and theirsubdivisions. The common law permitted aggrieved partiesto bring nuisance suits against polluters. But as industrial production and population growth increased the quantity and toxicity of pollution, States gradually shifted to enforcement by regulatory agencies.4 Conversely, federal regulation was largely limited to ensuring that \u201ctraditional navigable waters\u201d\u2014that is, interstate waters that were eithernavigable in fact and used in commerce or readily susceptible of being used in this way\u2014remained free of impediments. See, e.g., Rivers and Harbors Act of 1899, 30 Stat. 1151; see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406\u2013407 (1940); The Daniel Ball, 10 Wall. 557, 563 (1871).
Congress\u2019s early efforts at directly regulating water pollution were tepid. Although the Federal Water Pollution Control Act of 1948 allowed federal officials to seek judicial abatement of pollution in interstate waters, it imposed high
\u2014\u2014\u2014\u2014\u2014\u2014 3See Rapanos v. United States, 547 U. S. 715 (2006). Neither party contends that any opinion in Rapanos controls. We agree. See Nichols
v. United States, 511 U. S. 738, 745\u2013746 (1994).
4See N. Hines, Nor Any Drop To Drink: Public Regulation of Water Quality, 52 Iowa L. Rev. 186, 196\u2013207 (1966).
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hurdles, such as requiring the consent of the State where the pollution originated. See 62 Stat. 1156\u20131157. Despiterepeated amendments over the next two decades, few actions were brought under this framework.5
Congress eventually replaced this scheme in 1972 withthe CWA. See 86 Stat. 816. The Act prohibits \u201cthe discharge of any pollutant\u201d into \u201cnavigable waters.\u201d 33
U. S. C. \u00a7\u00a71311(a), 1362(12)(A). It broadly defines the term \u201c\u2018pollutant\u2019\u201d to include not only contaminants like \u201cchemical wastes,\u201d but also more mundane materials like \u201crock, sand,\u201d and \u201ccellar dirt.\u201d \u00a71362(6).
The CWA is a potent weapon. It imposes what have beendescribed as \u201ccrushing\u201d consequences \u201ceven for inadvertentviolations.\u201d Army Corps of Engineers v. Hawkes Co., 578
U. S. 590, 602 (2016) (Kennedy, J., concurring). Propertyowners who negligently discharge \u201cpollutants\u201d into covered waters may face severe criminal penalties including imprisonment. \u00a71319(c). These penalties increase for knowing violations. Ibid. On the civil side, the CWA imposes over$60,000 in fines per day for each violation. See Note following 28 U. S. C. \u00a72461; 33 U. S. C. \u00a71319(d); 88 Fed. Reg. 989(2023) (to be codified in 40 CFR \u00a719.4). And due to the Act\u2019s 5-year statute of limitations, 28 U. S. C. \u00a72462, and expansive interpretations of the term \u201cviolation,\u201d these civil penalties can be nearly as crushing as their criminal counterparts, see, e.g., Borden Ranch Partnership v. United States Army Corps of Engineers, 261 F. 3d 810, 813, 818 (CA92001) (upholding Agency decision to count each of 348 passes of a plow by a farmer through \u201cjurisdictional\u201d soil on his farm as a separate violation), aff \u2019d by an equally divided Court, 537 U. S. 99 (2002) (per curiam).
The Environmental Protection Agency (EPA) and the \u2014\u2014\u2014\u2014\u2014\u2014 5See Hearings on Activities of the Federal Water Pollution Control Administration before the Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, 90th Cong., 1st Sess., 674 (1967)(reporting only one abatement suit between 1948 and 1967).
4 SACKETT v. EPA
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Army Corps of Engineers (Corps) jointly enforce the CWA.The EPA is tasked with policing violations after the fact,either by issuing orders demanding compliance or by bringing civil actions. \u00a71319(a). The Act also authorizes privateplaintiffs to sue to enforce its requirements. \u00a71365(a). On the front end, both agencies are empowered to issue permits exempting activity that would otherwise be unlawful under the Act. Relevant here, the Corps controls permits for the discharge of dredged or fill material into covered waters. See \u00a71344(a). The costs of obtaining such a permit are \u201csignificant,\u201d and both agencies have admitted that \u201cthe permitting process can be arduous, expensive, and long.\u201d Hawkes Co., 578 U. S., at 594\u2013595, 601. Success is also far from guaranteed, as the Corps has asserted discretion togrant or deny permits based on a long, nonexclusive list of factors that ends with a catchall mandate to consider \u201cin general, the needs and welfare of the people.\u201d 33 CFR \u00a7320.4(a)(1) (2022).
Due to the CWA\u2019s capacious definition of \u201cpollutant,\u201d itslow mens rea, and its severe penalties, regulated partieshave focused particular attention on the Act\u2019s geographic scope. While its predecessor encompassed \u201cinterstate or navigable waters,\u201d 33 U. S. C. \u00a71160(a) (1970 ed.), the CWA prohibits the discharge of pollutants into only \u201cnavigablewaters,\u201d which it defines as \u201cthe waters of the United States, including the territorial seas,\u201d 33 U. S. C. \u00a7\u00a71311(a), 1362(7), (12)(A) (2018 ed.). The meaning of this definitionis the persistent problem that we must address.
B Michael and Chantell Sackett have spent well over a decade navigating the CWA, and their voyage has been bumpyand costly. In 2004, they purchased a small lot near PriestLake, in Bonner County, Idaho. In preparation for building a modest home, they began backfilling their property with
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dirt and rocks. A few months later, the EPA sent the Sacketts a compliance order informing them that their backfilling violated the CWA because their property contained protected wetlands. The EPA demanded that the Sacketts immediately \u201c\u2018undertake activities to restore the Site\u2019\u201d pursuant to a \u201c\u2018Restoration Work Plan\u2019\u201d that it provided. Sackett v. EPA, 566 U. S. 120, 125 (2012). The order threatened the Sacketts with penalties of over $40,000 per day if they did not comply.
At the time, the EPA interpreted \u201cthe waters of the United States\u201d to include \u201c[a]ll . . . waters\u201d that \u201ccould affect interstate or foreign commerce,\u201d as well as \u201c[w]etlands adjacent\u201d to those waters. 40 CFR \u00a7\u00a7230.3(s)(3), (7) (2008).\u201c[A]djacent\u201d was defined to mean not just \u201cbordering\u201d or\u201ccontiguous,\u201d but also \u201cneighboring.\u201d \u00a7230.3(b). Agencyguidance instructed officials to assert jurisdiction over wetlands \u201cadjacent\u201d to non-navigable tributaries when those wetlands had \u201ca significant nexus to a traditional navigable water.\u201d6 A \u201csignificant nexus\u201d was said to exist when \u201c\u2018wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity\u2019\u201d of those waters. 2007 Guidance 8 (emphasis added). In looking for evidence of a \u201csignificant nexus,\u201d field agents were told to consider a widerange of open-ended hydrological and ecological factors.See id., at 7.
According to the EPA, the \u201cwetlands\u201d on the Sacketts\u2019 lotare \u201cadjacent to\u201d (in the sense that they are in the sameneighborhood as) what it described as an \u201cunnamed tributary\u201d on the other side of a 30-foot road. App. 33. That tributary feeds into a non-navigable creek, which, in turn, feeds into Priest Lake, an intrastate body of water that the
\u2014\u2014\u2014\u2014\u2014\u2014
6EPA & Corps, Clean Water Act Jurisdiction Following the U. S. Supreme Court\u2019s Decision in Rapanos v. United States & Carabell v. United States 7\u201311 (2007) (2007 Guidance).
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EPA designated as traditionally navigable. To establish a significant nexus, the EPA lumped the Sacketts\u2019 lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as \u201csimilarly situated.\u201d According to the EPA, these properties, taken together,\u201csignificantly affect\u201d the ecology of Priest Lake. Therefore, the EPA concluded, the Sacketts had illegally dumped soil and gravel onto \u201cthe waters of the United States.\u201d
The Sacketts filed suit under the Administrative Procedure Act, 5 U. S. C. \u00a7702 et seq., alleging that the EPA lacked jurisdiction because any wetlands on their propertywere not \u201cwaters of the United States.\u201d The District Court initially dismissed the suit, reasoning that the compliance order was not a final agency action, but this Court ultimately held that the Sacketts could bring their suit underthe APA. See Sackett, 566 U. S., at 131. After seven yearsof additional proceedings on remand, the District Court entered summary judgment for the EPA. 2019 WL 13026870 (D Idaho, Mar. 31, 2019). The Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts\u2019 lot satisfied that standard. 8 F. 4th 1075, 1091\u2013 1093 (2021).
We granted certiorari to decide the proper test for determining whether wetlands are \u201cwaters of the United States.\u201d 595 U. S. ___ (2022).
II A
In defining the meaning of \u201cthe waters of the United States,\u201d we revisit what has been \u201ca contentious and difficult task.\u201d National Assn. of Mfrs. v. Department of Defense, 583 U. S. ___, ___ (2018) (slip op., at 1). The phrasehas sparked decades of agency action and litigation. In order to resolve the CWA\u2019s applicability to wetlands, we begin by reviewing this history.
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Opinion of the Court
The EPA and the Corps initially promulgated differentinterpretations of \u201cthe waters of the United States.\u201d The EPA defined its jurisdiction broadly to include, for example, intrastate lakes used by interstate travelers. 38 Fed. Reg. 13529 (1973). Conversely, the Corps, consistent with itshistorical authority to regulate obstructions to navigation,asserted jurisdiction over only traditional navigable waters.39 Fed. Reg. 12119 (1974). But the Corps\u2019 narrow definition did not last. It soon promulgated new, much broader definitions designed to reach the outer limits of Congress\u2019s commerce power. See 42 Fed. Reg. 37144, and n. 2 (1977); 40 Fed. Reg. 31324\u201331325 (1975).
Eventually the EPA and Corps settled on materially identical definitions. See 45 Fed. Reg. 33424 (1980); 47 Fed.Reg. 31810\u201331811 (1982). These broad definitions encompassed \u201c[a]ll . . . waters\u201d that \u201ccould affect interstate or foreign commerce.\u201d 40 CFR \u00a7230.3(s)(3) (2008). So long as the potential for an interstate effect was present, the regulation extended the CWA to, for example, \u201cintrastate lakes, rivers, streams (including intermittent streams), mudflats, sand-flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds.\u201d Ibid. The agencies likewisetook an expansive view of the CWA\u2019s coverage of wetlands\u201cadjacent\u201d to covered waters. \u00a7230.3(s)(7). As noted, theydefined \u201cadjacent\u201d to mean \u201cbordering, contiguous, or neighboring\u201d and clarified that \u201cadjacent\u201d wetlands include those that are separated from covered waters \u201cby man-made dikes or barriers, natural river berms, beach dunes and the like.\u201d \u00a7230.3(b). They also specified that \u201cwetlands\u201d is a technical term encompassing \u201cthose areas thatare inundated or saturated by surface or ground water at afrequency and duration sufficient to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.\u201d\u00a7230.3(t). The Corps released what would become a 143page manual to guide officers when they determine whether
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property meets this definition.7
This Court first construed the meaning of \u201cthe waters ofthe United States\u201d in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). There, we were confronted with the Corps\u2019 assertion of authority under the CWA over wetlands that \u201cactually abut on a navigable waterway.\u201d Id., at 135. Although we expressed concernthat wetlands seemed to fall outside \u201ctraditional notions of \u2018waters,\u2019\u201d we nonetheless deferred to the Corps, reasoningthat \u201cthe transition from water to solid ground is not necessarily or even typically an abrupt one.\u201d Id., at 132\u2013133.
The agencies responded to Riverside Bayview by expanding their interpretations even further. Most notably, they issued the \u201cmigratory bird rule,\u201d which extended jurisdiction to any waters or wetlands that \u201care or would be used as [a] habitat\u201d by migratory birds or endangered species. See 53 Fed. Reg. 20765 (1988); 51 Fed. Reg. 41217 (1986). As the Corps would later admit, \u201cnearly all waters were jurisdictional under the migratory bird rule.\u201d8
In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC), thisCourt rejected the migratory bird rule, which the Corps hadused to assert jurisdiction over several isolated ponds located wholly within the State of Illinois. Disagreeing with the Corps\u2019 argument that ecological interests supported itsjurisdiction, we instead held that the CWA does not \u201cexten[d] to ponds that are not adjacent to open water.\u201d Id., at 168 (emphasis deleted).
Days after our decision, the agencies issued guidance that
\u2014\u2014\u2014\u2014\u2014\u2014
7See Corps, Wetlands Delineation Manual (Tech. Rep. Y\u201387\u20131, 1987) (Wetlands Delineation Manual); see also, e.g., Corps, Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Alaska Region (Version 2.0) (ERDC\/EL Tr\u201307\u201324, 2007).
8GAO, Waters and Wetlands: Corps of Engineers Needs To Evaluate Its District Office Practices in Determining Jurisdiction 26 (GAO\u201304\u2013 297, 2004) (GAO Report).
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Opinion of the Court
sought to minimize SWANCC\u2019s impact. They took the viewthat this Court\u2019s holding was \u201cstrictly limited to waters thatare \u2018nonnavigable, isolated, and intrastate\u2019\u201d and that \u201cfield staff should continue to exercise CWA jurisdiction to the full extent of their authority\u201d for \u201cany waters that fall outside of that category.\u201d9 The agencies never defined exactly what they regarded as the \u201cfull extent of their authority.\u201dThey instead encouraged local field agents to make decisions on a case-by-case basis.
What emerged was a system of \u201cvague\u201d rules that depended on \u201clocally developed practices.\u201d GAO Report 26. Deferring to the agencies\u2019 localized decisions, lower courtsblessed an array of expansive interpretations of the CWA\u2019sreach. See, e.g., United States v. Deaton, 332 F. 3d 698, 702 (CA4 2003) (holding that a property owner violated theCWA by piling soil near a ditch 32 miles from navigable waters). Within a few years, the agencies had \u201cinterpretedtheir jurisdiction over \u2018the waters of the United States\u2019 to cover 270-to-300 million acres\u201d of wetlands and \u201cvirtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.\u201d Rapanos v. United States, 547 U. S. 715, 722 (2006) (plurality opinion).
It was against this backdrop that we granted review in Rapanos v. United States. The lower court in the principalcase before us had held that the CWA covered wetlands near ditches and drains that eventually emptied into navigable waters at least 11 miles away, a theory that had supported the petitioner\u2019s conviction in a related prosecution. Id., at 720, 729. Although we vacated that decision, no position commanded a majority of the Court. Four Justices concluded that the CWA\u2019s coverage did not extend beyond two categories: first, certain relatively permanent bodies of
\u2014\u2014\u2014\u2014\u2014\u2014 9EPA & Corps, Memorandum, Supreme Court Ruling Concerning CWA Jurisdiction Over Isolated Waters 3 (2001) (alteration omitted).
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water connected to traditional interstate navigable waters and, second, wetlands with such a close physical connectionto those waters that they were \u201cas a practical matter indistinguishable from waters of the United States.\u201d Id., at 742, 755 (emphasis deleted). Four Justices would have deferred to the Government\u2019s determination that the wetlands at issue were covered under the CWA. Id., at 788 (Stevens, J., dissenting). Finally, one Justice concluded that jurisdictionunder the CWA requires a \u201csignificant nexus\u201d between wetlands and navigable waters and that such a nexus existswhere \u201cthe wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity\u201d of those waters. Id., at 779\u2013780 (Kennedy, J., concurring in judgment).
In the decade following Rapanos, the EPA and the Corpsissued guidance documents that \u201crecognized larger grey areas and called for more fact-intensive individualized determinations in those grey areas.\u201d10 As discussed, they instructed agency officials to assert jurisdiction over wetlands \u201cadjacent\u201d to non-navigable tributaries based on fact-specific determinations regarding the presence of a significant nexus. 2008 Guidance 8. The guidance further advised officials to make this determination by considering alengthy list of hydrological and ecological factors. Ibid. Echoing what they had said about the migratory bird rule,the agencies later admitted that \u201calmost all waters and wetlands across the country theoretically could be subject to acase-specific jurisdictional determination\u201d under this guidance. 80 Fed. Reg. 37056 (2015); see, e.g., Hawkes Co., 578
U. S., at 596 (explaining that the Corps found a significant nexus between wetlands and a river \u201csome 120 miles
\u2014\u2014\u2014\u2014\u2014\u2014
10N. Parrillo, Federal Agency Guidance and the Power To Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Reg. 165, 231 (2019); see 2007 Guidance 7\u201311; EPA & Corps, Clean Water Act Jurisdiction Following the U. S. Supreme Court\u2019s Decision in Rapanos v. United States & Carabell v. United States 8\u201312 (2008) (2008 Guidance).
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away\u201d).
More recently, the agencies have engaged in a flurry ofrulemaking defining \u201cthe waters of the United States.\u201d In a 2015 rule, they offered a muscular approach that would subject \u201cthe vast majority of the nation\u2019s water features\u201d to a case-by-case jurisdictional analysis.11 Although the rulelisted a few examples of \u201cwaters\u201d that were excluded from regulation like \u201c[p]uddles\u201d and \u201cswimming pools,\u201d it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters. 80 Fed. Reg. 37116\u201337117. And it subjected a widerrange of other waters, including any within 4,000 feet of indirect tributaries of interstate or traditional navigable waters, to a case-specific determination for significant nexus. Ibid.
The agencies repealed this sweeping rule in 2019. 84 Fed. Reg. 56626. Shortly afterwards, they replaced it witha narrower definition that limited jurisdiction to traditionalnavigable waters and their tributaries, lakes, and \u201cadjacent\u201d wetlands. 85 Fed. Reg. 22340 (2020). They also narrowed the definition of \u201c[a]djacent,\u201d limiting it to wetlandsthat \u201c[a]but\u201d covered waters, are flooded by those waters, orare separated from those waters by features like berms or barriers. Ibid. This rule too did not last. After granting the EPA\u2019s voluntary motion to remand, a District Court vacated the rule. See Pascua Yaqui Tribe v. EPA, 557
F. Supp. 3d 949, 957 (D Ariz. 2021).
The agencies recently promulgated yet another rule attempting to define waters of the United States. 88 Fed. Reg. 3004 (2023) (to be codified in 40 CFR \u00a7120.2). Under that broader rule, traditional navigable waters, interstatewaters, and the territorial seas, as well as their tributaries and adjacent wetlands, are waters of the United States. 88
\u2014\u2014\u2014\u2014\u2014\u2014 11EPA & Dept. of the Army, Economic Analysis of the EPA-ArmyClean Water Rule 11 (2015).
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Fed. Reg. 3143. So are any \u201c[i]ntrastate lakes and ponds,streams, or wetlands\u201d that either have a continuous surface connection to categorically included waters or have a significant nexus to interstate or traditional navigable waters. Id., at 3006, 3143. Like the post-Rapanos guidance, therule states that a significant nexus requires considerationof a list of open-ended factors. 88 Fed. Reg. 3006, 3144. Finally, the rule returns to the broad pre-2020 definition of \u201cadjacent.\u201d Ibid.; see supra, at 7. Acknowledging that \u201c[f]ield work is often necessary to confirm the presence of awetland\u201d under these definitions, the rule instructs local agents to continue using the Corps\u2019 Wetlands DelineationManual. 88 Fed. Reg. 3117.
B With the benefit of a half century of practice under the CWA, it is worth taking stock of where things stand. The agencies maintain that the significant-nexus test has beenand remains sufficient to establish jurisdiction over \u201cadjacent\u201d wetlands. And by the EPA\u2019s own admission, \u201calmost all waters and wetlands\u201d are potentially susceptible to regulation under that test. 80 Fed. Reg. 37056. This putsmany property owners in a precarious position because it is \u201coften difficult to determine whether a particular piece ofproperty contains waters of the United States.\u201d Hawkes Co., 578 U. S., at 594; see 40 CFR \u00a7230.3(t) (2008). Even if a property appears dry, application of the guidance in a complicated manual ultimately decides whether it containswetlands. See 88 Fed. Reg. 3117; Wetlands Delineation Manual 84\u201385 (describing \u201cnot . . . atypical\u201d examples of wetlands that periodically lack wetlands indicators); seealso Hawkes Co. v. United States Army Corps of Engineers, 782 F. 3d 994, 1003 (CA8 2015) (Kelly, J., concurring) (\u201cThisis a unique aspect of the CWA; most laws do not require thehiring of expert consultants to determine if they even applyto you or your property\u201d). And because the CWA can sweep
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Opinion of the Court
broadly enough to criminalize mundane activities like moving dirt, this unchecked definition of \u201cthe waters of the United States\u201d means that a staggering array of landowners are at risk of criminal prosecution or onerous civil penalties.
What are landowners to do if they want to build on their property? The EPA recommends asking the Corps for a jurisdictional determination, which is a written decision on whether a particular site contains covered waters. Tr. of Oral Arg. 86; see Corps, Regulatory Guidance Letter No.16\u201301, at 1 (2016) (RGL 16\u201301); 33 CFR \u00a7\u00a7320.1(a)(6),
331.2. But the Corps maintains that it has no obligation to provide jurisdictional determinations, RGL 16\u201301, at 2, and it has already begun announcing exceptions to the legal effect of some previous determinations, see 88 Fed. Reg. 3136. Even if the Corps is willing to provide a jurisdictional determination, a property owner may find it necessary to retain an expensive expert consultant who is capable of putting together a presentation that stands a chance of persuading the Corps.12 And even then, a landowner\u2019s chances of success are low, as the EPA admits that the Corps finds jurisdiction approximately 75% of the time. Tr. of Oral Arg. 110.
If the landowner is among the vast majority who receiveadverse jurisdictional determinations, what then? It would be foolish to go ahead and build since the jurisdictional determination might form evidence of culpability in a prosecution or civil action. The jurisdictional determinationcould be challenged in court, but only after the delay and expense required to exhaust the administrative appeals
\u2014\u2014\u2014\u2014\u2014\u2014
12See 88 Fed. Reg. 3134; Corps, Questions and Answers for Rapanosand Carabell Decision 16 (2007); J. Finkle, Jurisdictional Determinations: An Important Battlefield in the Clean Water Act Fight, 43 Ecology
L. Q. 301, 314\u2013315 (2016); K. Gould, Drowning in Wetlands Jurisdictional Determination Process: Implementation of Rapanos v. United States, 30 U. Ark. Little Rock L. Rev. 413, 440 (2008).
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process. See 33 CFR \u00a7331.7(d). And once in court, the landowner would face an uphill battle under the deferentialstandards of review that the agencies enjoy. See 5 U. S. C. \u00a7706. Another alternative would be simply to acquiesce and seek a permit from the Corps. But that process can take years and cost an exorbitant amount of money. Many landowners faced with this unappetizing menu of options wouldsimply choose to build nothing.
III With this history in mind, we now consider the extent of the CWA\u2019s geographical reach.
A We start, as we always do, with the text of the CWA. Bartenwerfer v. Buckley, 598 U. S. 69, 74 (2023). As noted, the Act applies to \u201cnavigable waters,\u201d which had a well-established meaning at the time of the CWA\u2019s enactment. But the CWA complicates matters by proceeding to define \u201cnavigable waters\u201d as \u201cthe waters of the United States,\u201d\u00a71362(7), which was decidedly not a well-known term of art.This frustrating drafting choice has led to decades of litigation, but we must try to make sense of the terms Congress chose to adopt. And for the reasons explained below, weconclude that the Rapanos plurality was correct: the CWA\u2019suse of \u201cwaters\u201d encompasses \u201conly those relatively permanent, standing or continuously flowing bodies of water\u2018forming geographic[al] features\u2019 that are described in ordinary parlance as \u2018streams, oceans, rivers, and lakes.\u2019\u201d 547
U. S., at 739 (quoting Webster\u2019s New International Dictionary 2882 (2d ed. 1954) (Webster\u2019s Second); original alterations omitted).
This reading follows from the CWA\u2019s deliberate use of theplural term \u201cwaters.\u201d See 547 U. S., at 732\u2013733. That term typically refers to bodies of water like those listed above. See, e.g., Webster\u2019s Second 2882; Black\u2019s Law Dictionary
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1426 (5th ed. 1979) (\u201cespecially in the plural, [water] may designate a body of water, such as a river, a lake, or an ocean, or an aggregate of such bodies of water, as in thephrases \u2018foreign waters,\u2019 \u2018waters of the United States,\u2019 and the like\u201d (emphasis added)); Random House Dictionary of the English Language 2146 (2d ed. 1987) (Random HouseDictionary) (defining \u201cwaters\u201d as \u201ca. flowing water, or watermoving in waves: The river\u2019s mighty waters. b. the sea or seas bordering a particular country or continent or locatedin a particular part of the world\u201d (emphasis deleted)). This meaning is hard to reconcile with classifying \u201c\u2018\u201clands,\u201d wet or otherwise, as \u201cwaters.\u201d\u2019\u201d Rapanos, 547 U. S., at 740 (plurality opinion) (quoting Riverside Bayview, 474 U. S., at 132).
This reading also helps to align the meaning of \u201cthe waters of the United States\u201d with the term it is defining: \u201cnavigable waters.\u201d See Bond v. United States, 572 U. S. 844, 861 (2014) (\u201cIn settling on a fair reading of a statute, it isnot unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition\u201d). Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read \u201cnavigable\u201d out of the statute, holding that it at least shows that Congress was focused on \u201cits traditional jurisdiction over waters that were or had been navigable in factor which could reasonably be so made.\u201d SWANCC, 531
U. S., at 172; see also Appalachian Electric, 311 U. S., at 406\u2013407; The Daniel Ball, 10 Wall., at 563. At a minimum, then, the use of \u201cnavigable\u201d signals that the definition principally refers to bodies of navigable water like rivers, lakes, and oceans. See Rapanos, 547 U. S., at 734 (plurality opinion).
More broadly, this reading accords with how Congresshas employed the term \u201cwaters\u201d elsewhere in the CWA and
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in other laws. The CWA repeatedly uses \u201cwaters\u201d in contexts that confirm the term refers to bodies of open water. See 33 U. S. C. \u00a71267(i)(2)(D) (\u201cthe waters of the Chesapeake Bay\u201d); \u00a71268(a)(3)(I) (\u201cthe open waters of each of theGreat Lakes\u201d); \u00a71324(d)(4)(B)(ii) (\u201clakes and other surface waters\u201d); \u00a71330(g)(4)(C)(vii) (\u201cestuarine waters\u201d);\u00a71343(c)(1) (\u201cthe waters of the territorial seas, the contiguous zone, and the oceans\u201d); \u00a7\u00a71346(a)(1), 1375a(a) (\u201ccoastal recreation waters\u201d); \u00a71370 (state \u201cboundary waters\u201d). The use of \u201cwaters\u201d elsewhere in the U. S. Code likewise correlates to rivers, lakes, and oceans.13
Statutory history points in the same direction. The CWA\u2019s predecessor statute covered \u201cinterstate or navigable waters\u201d and defined \u201cinterstate waters\u201d as \u201call rivers, lakes, and other waters that flow across or form a part of State boundaries.\u201d 33 U. S. C. \u00a7\u00a71160(a), 1173(e) (1970 ed.) (emphasis added); see also Rivers and Harbors Act of 1899, 30Stat. 1151 (codified, as amended, at 33 U. S. C. \u00a7403) (prohibiting unauthorized obstructions \u201cto the navigable capacity of any of the waters of the United States\u201d).
This Court has understood the CWA\u2019s use of \u201cwaters\u201d in the same way. Even as Riverside Bayview grappled withwhether adjacent wetlands could fall within the CWA\u2019s coverage, it acknowledged that wetlands are not included in \u201ctraditional notions of \u2018waters.\u2019\u201d 474 U. S., at 133. It explained that the term conventionally refers to \u201chydrographic features\u201d like \u201crivers\u201d and \u201cstreams.\u201d Id., at 131. SWANCC went even further, repeatedly describing the\u201cwaters\u201d covered by the Act as \u201copen water\u201d and suggesting
\u2014\u2014\u2014\u2014\u2014\u2014
13See, e.g., 16 U. S. C. \u00a7745 (\u201cthe waters of the seacoast . . . the waters of the lakes\u201d); \u00a74701(a)(7) (\u201cwaters of the Chesapeake Bay\u201d); 33 U. S. C.\u00a74 (\u201cthe waters of the Mississippi River and its tributaries\u201d); 43 U. S. C. \u00a7390h\u20138(a) (\u201cthe waters of Lake Cheraw, Colorado . . . the waters of the Arkansas River\u201d); 46 U. S. C. \u00a770051 (allowing the Coast Guard to takecontrol of particular vessels during an emergency in order to \u201cpreventdamage or injury to any harbor or waters of the United States\u201d).
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that \u201cthe waters of the United States\u201d principally refers to traditional navigable waters. 531 U. S., at 168\u2013169, 172. That our CWA decisions operated under this assumption is unsurprising. Ever since Gibbons v. Ogden, 9 Wheat. 1 (1824), this Court has used \u201cwaters of the United States\u201d torefer to similar bodies of water, almost always in relation to ships. Id., at 218 (discussing a vessel\u2019s \u201cconduct in the waters of the United States\u201d).14
The EPA argues that \u201cwaters\u201d is \u201cnaturally read to encompass wetlands\u201d because the \u201cpresence of water is \u2018universally regarded as the most basic feature of wetlands.\u2019\u201d Brief for Respondents 19. But that reading proves too much. Consider puddles, which are also defined by the ordinary presence of water even though few would describethem as \u201cwaters.\u201d This argument is also tough to square with SWANCC, which held that the Act does not cover isolated ponds, see 531 U. S., at 171, or Riverside Bayview, which would have had no need to focus so extensively on the adjacency of wetlands to covered waters if the EPA\u2019s reading were correct, see 474 U. S., at 131\u2013135, and n. 8. Finally, it is also instructive that the CWA expressly \u201cprotect[s] the primary responsibilities and rights of States toprevent, reduce, and eliminate pollution\u201d and \u201cto plan thedevelopment and use . . . of land and water resources.\u201d
\u2014\u2014\u2014\u2014\u2014\u2014
14See, e.g., United States v. Alvarez-Machain, 504 U. S. 655, 661, n. 7 (1992) (discussing a treaty \u201cto allow British passenger ships to carry liquor while in the waters of the United States\u201d); Kent v. Dulles, 357 U. S. 116, 123 (1958) (discussing a prohibition on boarding \u201cvessels of the enemy on waters of the United States\u201d); New Jersey v. New York City, 290
U. S. 237, 240 (1933) (enjoining employees of New York City from dumping garbage \u201cinto the ocean, or waters of the United States, off the coast of New Jersey\u201d); Cunard S. S. Co. v. Mellon, 262 U. S. 100, 127 (1923)(holding that the National Prohibition Act did not apply to \u201cmerchantships when outside the waters of the United States\u201d); Keck v. United States, 172 U. S. 434, 444\u2013445 (1899) (holding that concealing importedgoods on vessels \u201cat the time of entering the waters of the United States,\u201dwithout more, did not constitute smuggling).
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\u00a71251(b). It is hard to see how the States\u2019 role in regulating water resources would remain \u201cprimary\u201d if the EPA had jurisdiction over anything defined by the presence of water.See County of Maui v. Hawaii Wildlife Fund, 590 U. S. ___, ___ (2020) (slip op., at 7); Rapanos, 547 U. S., at 737 (plurality opinion).
B Although the ordinary meaning of \u201cwaters\u201d in \u00a71362(7)might seem to exclude all wetlands, we do not view thatprovision in isolation. The meaning of a word \u201cmay onlybecome evident when placed in context,\u201d FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132 (2000), and statutory context shows that some wetlands qualify as \u201cwaters of the United States.\u201d In 1977, Congress amended the CWA and added \u00a71344(g)(1), which authorizes States to apply to the EPA forpermission to administer programs to issue permits for the discharge of dredged or fill material into some bodies of water. In simplified terms, the provision specifies that state permitting programs may regulate discharges into (1) anywaters of the United States, (2) except for traditional navigable waters, (3) \u201cincluding wetlands adjacent thereto.\u201d15 When this convoluted formulation is parsed, it tells usthat at least some wetlands must qualify as \u201cwaters of the \u2014\u2014\u2014\u2014\u2014\u2014 15This provision states in relevant part: \u201cThe Governor of any State desiring to administer its own individual and general permit program forthe discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark, or mean higher high water mark on the west coast, including wetlands adjacent thereto) within its jurisdiction may submit to the Administrator a fulland complete description of the program it proposes to establish and administer under State law or under an interstate compact.\u201d 33 U. S. C. \u00a71344(g)(1).
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United States.\u201d The provision begins with a broad category,\u201cthe waters of the United States,\u201d which we may call category A. The provision provides that States may permit discharges into these waters, but it then qualifies that Statescannot permit discharges into a subcategory of A: traditional navigable waters (category B). Finally, it states thata third category (category C), consisting of wetlands \u201cadjacent\u201d to traditional navigable waters, is \u201cinclud[ed]\u201d within
B. Thus, States may permit discharges into A minus B,which includes C. If C (adjacent wetlands) were not part ofA (\u201cthe waters of the United States\u201d) and therefore subject to regulation under the CWA, there would be no point inexcluding them from that category. See Riverside Bayview, 474 U. S., at 138, n. 11 (recognizing that \u00a71344(g) \u201cat least suggest[s] strongly that the term \u2018waters\u2019 as used in the Actdoes not necessarily exclude \u2018wetlands\u2019\u201d); Rapanos, 547
U. S., at 768 (opinion of Kennedy, J.). Thus, \u00a71344(g)(1) presumes that certain wetlands constitute \u201cwaters of theUnited States.\u201d
But what wetlands does the CWA regulate? Section 1344(g)(1) cannot answer that question alone because it is not the operative provision that defines the Act\u2019s reach. See Riverside Bayview, 474 U. S., at 138, n. 11. Instead, we must harmonize the reference to adjacent wetlands in\u00a71344(g)(1) with \u201cthe waters of the United States,\u201d \u00a71362(7), which is the actual term we are tasked with interpreting. The formulation discussed above tells us how: because the adjacent wetlands in \u00a71344(g)(1) are \u201cinclud[ed]\u201d within \u201cthe waters of the United States,\u201d these wetlands must qualify as \u201cwaters of the United States\u201d in their own right. In other words, they must be indistinguishably partof a body of water that itself constitutes \u201cwaters\u201d under theCWA. See supra, at 14.
This understanding is consistent with \u00a71344(g)(1)\u2019s use of\u201cadjacent.\u201d Dictionaries tell us that the term \u201cadjacent\u201dmay mean either \u201ccontiguous\u201d or \u201cnear.\u201d Random House
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Dictionary 25; see Webster\u2019s Third New International Dictionary 26 (1976); see also Oxford American Dictionary & Thesaurus 16 (2d ed. 2009) (listing \u201cadjoining\u201d and \u201cneighboring\u201d as synonyms of \u201cadjacent\u201d). But \u201cconstruing statutory language is not merely an exercise in ascertaining \u2018theouter limits of a word\u2019s definitional possibilities,\u2019\u201d FCC v. AT&T Inc., 562 U. S. 397, 407 (2011) (alterations omitted), and here, \u201conly one . . . meanin[g] produces a substantive effect that is compatible with the rest of the law,\u201d United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988). Wetlands that are separatefrom traditional navigable waters cannot be considered part of those waters, even if they are located nearby.
In addition, it would be odd indeed if Congress had tuckedan important expansion to the reach of the CWA into convoluted language in a relatively obscure provision concerning state permitting programs. We have often remarked that Congress does not \u201chide elephants in mouseholes\u201d by \u201calter[ing] the fundamental details of a regulatory schemein vague terms or ancillary provisions.\u201d Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). We cannot agree with such an implausible interpretation here.
If \u00a71344(g)(1) were read to mean that the CWA applies to wetlands that are not indistinguishably part of otherwise covered \u201cwaters of the United States,\u201d see supra, at 14, it would effectively amend and substantially broaden \u00a71362(7) to define \u201cnavigable waters\u201d as \u201cwaters of the United States and adjacent wetlands.\u201d But \u00a71344(g)(1)\u2019suse of the term \u201cincluding\u201d makes clear that it does not purport to do\u2014and in fact, does not do\u2014any such thing. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 662\u2013664, and n. 8 (2007) (recognizing thatimplied amendments require \u201c\u2018clear and manifest\u2019\u201d evidence of congressional intent). It merely reflects Congress\u2019sassumption that certain \u201cadjacent\u201d wetlands are part of \u201cwaters of the United States.\u201d
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This is the thrust of observations in decisions going all the way back to Riverside Bayview. In that case, we deferred to the Corps\u2019 decision to regulate wetlands actuallyabutting a navigable waterway, but we recognized \u201cthe inherent difficulties of defining precise bounds to regulable waters.\u201d 474 U. S., at 134; see also id., at 132 (noting that\u201cthe transition from water to solid ground is not necessarilyor even typically an abrupt one\u201d due to semi-aquatic features like shallows and swamps). In such a situation, we concluded, the Corps could reasonably determine that wetlands \u201cadjoining bodies of water\u201d were part of those waters. Id., at 135, and n. 9; see also SWANCC, 531 U. S., at 167 (recognizing that Riverside Bayview \u201cheld that the Corps had . . . jurisdiction over wetlands that actually abutted ona navigable waterway\u201d).
In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that\u201cwaters\u201d may fairly be read to include only those wetlands that are \u201cas a practical matter indistinguishable from waters of the United States,\u201d such that it is \u201cdifficult to determine where the \u2018water\u2019 ends and the \u2018wetland\u2019 begins.\u201d 547
U. S., at 742, 755 (emphasis deleted). That occurs when wetlands have \u201ca continuous surface connection to bodies that are \u2018waters of the United States\u2019 in their own right, sothat there is no clear demarcation between \u2018waters\u2019 and wetlands.\u201d Id., at 742; cf. 33 U. S. C. \u00a72802(5) (defining \u201ccoastal waters\u201d to include wetlands \u201chaving unimpaired connection with the open sea up to the head of tidal influence\u201d). We agree with this formulation of when wetlandsare part of \u201cthe waters of the United States.\u201d We also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena likelow tides or dry spells.16
\u2014\u2014\u2014\u2014\u2014\u2014 16Although a barrier separating a wetland from a water of the United States would ordinarily remove that wetland from federal jurisdiction, a
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In sum, we hold that the CWA extends to only those wetlands that are \u201cas a practical matter indistinguishable fromwaters of the United States.\u201d Rapanos, 547 U. S., at 755 (plurality opinion) (emphasis deleted). This requires theparty asserting jurisdiction over adjacent wetlands to establish \u201cfirst, that the adjacent [body of water constitutes] . . . \u2018water[s] of the United States,\u2019 (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficultto determine where the \u2018water\u2019 ends and the \u2018wetland\u2019 begins.\u201d Id., at 742.
IV The EPA resists this reading of \u00a71362(7) and instead asksus to defer to its understanding of the CWA\u2019s jurisdictionalreach, as set out in its most recent rule defining \u201cthe watersof the United States.\u201d See 88 Fed. Reg. 3004. This rule, as noted, provides that \u201cadjacent wetlands are covered by the Act if they \u2018possess a \u201csignificant nexus\u201d to\u2019 traditional navigable waters.\u201d Brief for Respondents 32 (quoting Rapanos, 547 U. S., at 759 (opinion of Kennedy, J.)); see 88 Fed. Reg. 3143. And according to the EPA, wetlands are \u201cadjacent\u201dwhen they are \u201cneighboring\u201d to covered waters, even if theyare separated from those waters by dry land. Brief for Respondents 20; 88 Fed. Reg. 3144.
A For reasons already explained, this interpretation is inconsistent with the text and structure of the CWA. Beyondthat, it clashes with \u201cbackground principles of construction\u201d
\u2014\u2014\u2014\u2014\u2014\u2014 landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA.Whenever the EPA can exercise its statutory authority to order a barrier\u2019s removal because it violates the Act, see 33 U. S. C. \u00a7\u00a71319(a)\u2013(b),that unlawful barrier poses no bar to its jurisdiction.
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that apply to the interpretation of the relevant statutoryprovisions. Bond, 572 U. S., at 857. Under those presumptions, the EPA must provide clear evidence that it is authorized to regulate in the manner it proposes.
1 First, this Court \u201crequire[s] Congress to enact exceedingly clear language if it wishes to significantly alter thebalance between federal and state power and the power of the Government over private property.\u201d United States Forest Service v. Cowpasture River Preservation Assn., 590
U. S. ___, ___\u2013___ (2020) (slip op., at 15\u201316); see also Bond, 572 U. S., at 858. Regulation of land and water use lies at the core of traditional state authority. See, e.g., SWANCC, 531 U. S., at 174 (citing Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994)); Tarrant Regional Water Dist. v. Herrmann, 569 U. S. 614, 631 (2013). An overly broad interpretation of the CWA\u2019s reach would impinge on this authority. The area covered by wetlands alone is vast\u2014greater than the combined surface area of California and Texas. And the scope of the EPA\u2019s conception of \u201cthe waters of the United States\u201d is truly staggeringwhen this vast territory is supplemented by all the additional area, some of which is generally dry, over which the Agency asserts jurisdiction. Particularly given the CWA\u2019s express policy to \u201cpreserve\u201d the States\u2019 \u201cprimary\u201d authorityover land and water use, \u00a71251(b), this Court has required a clear statement from Congress when determining the scope of \u201cthe waters of the United States.\u201d SWANCC, 531
U. S., at 174; accord, Rapanos, 547 U. S., at 738 (plurality opinion).
The EPA, however, offers only a passing attempt to square its interpretation with the text of \u00a71362(7), and its\u201csignificant nexus\u201d theory is particularly implausible. It suggests that the meaning of \u201cthe waters of the United
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States\u201d is so \u201cbroad and unqualified\u201d that, if viewed in isolation, it would extend to all water in the United States. Brief for Respondents 32. The EPA thus turns to the \u201csignificant nexus\u201d test in order to reduce the clash between its understanding of \u201cthe waters of the United States\u201d and the term defined by that phrase, i.e., \u201cnavigable waters.\u201d As discussed, however, the meaning of \u201cwaters\u201d is more limited than the EPA believes. See supra, at 14. And, in any event,the CWA never mentions the \u201csignificant nexus\u201d test, so theEPA has no statutory basis to impose it. See Rapanos, 547
U. S., at 755\u2013756 (plurality opinion).
2 Second, the EPA\u2019s interpretation gives rise to serious vagueness concerns in light of the CWA\u2019s criminal penalties. Due process requires Congress to define penal statutes\u201c\u2018with sufficient definiteness that ordinary people can understand what conduct is prohibited\u2019\u201d and \u201c\u2018in a manner that does not encourage arbitrary and discriminatory enforcement.\u2019\u201d McDonnell v. United States, 579 U. S. 550, 576 (2016) (quoting Skilling v. United States, 561 U. S. 358, 402\u2013403 (2010)). Yet the meaning of \u201cwaters of the United States\u201d under the EPA\u2019s interpretation remains \u201chopelessly indeterminate.\u201d Sackett, 566 U. S., at 133 (ALITO, J., concurring); accord, Hawkes Co., 578 U. S., at 602 (opinion of Kennedy, J.).The EPA contends that the only thing preventing it from interpreting \u201cwaters of the United States\u201d to \u201cconceivably cover literally every body of water in the country\u201d is the significant-nexus test. Tr. of Oral Arg. 70\u201371; accord, Brief for Respondents 32. But the boundary between a \u201csignificant\u201d and an insignificant nexus is far from clear. And to add to the uncertainty, the test introduces another vagueconcept\u2014\u201csimilarly situated\u201d waters\u2014and then assesses the aggregate effect of that group based on a variety of open-ended factors that evolve as scientific understandings
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change. This freewheeling inquiry provides little notice to landowners of their obligations under the CWA. Facing severe criminal sanctions for even negligent violations, property owners are \u201cleft \u2018to feel their way on a case-by-case basis.\u2019\u201d Sackett, 566 U. S., at 124 (quoting Rapanos, 547 U. S., at 758 (ROBERTS, C. J., concurring)). Where a penal statutecould sweep so broadly as to render criminal a host of what might otherwise be considered ordinary activities, we havebeen wary about going beyond what \u201cCongress certainly intended the statute to cover.\u201d Skilling, 561 U. S., at 404.
Under these two background principles, the judicial task when interpreting \u201cthe waters of the United States\u201d is to ascertain whether clear congressional authorization exists for the EPA\u2019s claimed power. The EPA\u2019s interpretation falls far short of that standard.
B While mustering only a weak textual argument, the EPA justifies its position on two other grounds. It primarily claims that Congress implicitly ratified its interpretation of \u201cadjacent\u201d wetlands when it adopted \u00a71344(g)(1). Thus, it argues that \u201cwaters of the United States\u201d covers any wetlands that are \u201cbordering, contiguous, or neighboring\u201d to covered waters. 88 Fed. Reg. 3143. The principal opinionconcurring in the judgment adopts the same position. See post, at 10\u201312 (KAVANAUGH, J., concurring in judgment).The EPA notes that the Corps had promulgated regulations adopting that interpretation before Congress amended theCWA in 1977 to include the reference to \u201cadjacent\u201d wetlands in \u00a71344(g)(1). See 42 Fed. Reg. 37144. This term, the EPA contends, was \u201c\u2018\u201cobviously transplanted from\u201d\u2019\u201d the Corps\u2019 regulations and thus incorporates the same definition. Brief for Respondents 22 (quoting Taggart v. Lorenzen, 587 U. S. ___, ___ (2019) (slip op., at 5)). This argument fails for at least three reasons. First, as we have explained, the text of \u00a7\u00a71362(7) and 1344(g)(1)
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shows that \u201cadjacent\u201d cannot include wetlands that are not part of covered \u201cwaters.\u201d See supra, at 22.
Second, this ratification theory cannot be reconciled with our cases. We have repeatedly recognized that \u00a71344(g)(1) \u201c\u2018does not conclusively determine the construction to be placed on . . . the relevant definition of \u201cnavigable waters.\u201d\u2019\u201d SWANCC, 531 U. S., at 171 (quoting Riverside Bayview, 474 U. S., at 138, n. 11); accord, Rapanos, 547
U. S., at 747\u2013748, n. 12 (plurality opinion). Additionally, SWANCC rejected the closely analogous argument that Congress ratified the Corps\u2019 definition of \u201cwaters of theUnited States\u201d by including \u201c\u2018other . . . waters\u2019\u201d in \u00a71344(g)(1). 531 U. S., at 168\u2013171. And yet, the EPA\u2019s argument would require us to hold that \u00a71344(g)(1) actually did amend the definition of \u201cnavigable waters\u201d precisely for the reasons we rejected in SWANCC.
Third, the EPA cannot provide the sort of \u201coverwhelmingevidence of acquiescence\u201d necessary to support its argument in the face of Congress\u2019s failure to amend \u00a71362(7). Id., at 169\u2013170, n. 5. We will infer that a term was \u201c\u2018transplanted from another legal source\u2019 . . . only when a term\u2019smeaning was \u2018well-settled\u2019 before the transplantation.\u201d Kemp v. United States, 596 U. S. ___, ___\u2013___ (2022) (slip op., at 9\u201310). Far from being well settled, the Corps\u2019 definition was promulgated mere months before the CWA became law, and when the Corps adopted that definition, it candidly acknowledged the \u201crapidly changing nature of [its] regulatory programs.\u201d 42 Fed. Reg. 37122. Tellingly, eventhe EPA would not adopt that definition for several more years. See 45 Fed. Reg. 85345 (1980). This situation is a far cry from any in which we have found ratification. See, e.g., George v. McDonough, 596 U. S. ___, ___ (2022) (slip op., at 5) (finding ratification when \u201cCongress used an unusual term that had a long regulatory history in [the] very regulatory context\u201d at issue).
The EPA also advances various policy arguments about
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the ecological consequences of a narrower definition of adjacent. But the CWA does not define the EPA\u2019s jurisdictionbased on ecological importance, and we cannot redraw theAct\u2019s allocation of authority. See Rapanos, 547 U. S., at 756 (plurality opinion). \u201cThe Clean Water Act anticipates apartnership between the States and the Federal Government.\u201d Arkansas v. Oklahoma, 503 U. S. 91, 101 (1992). States can and will continue to exercise their primary authority to combat water pollution by regulating land and water use. See, e.g., Brief for Farm Bureau of Arkansas et al. as Amici Curiae 17\u201327.
V Nothing in the separate opinions filed by JUSTICE KAVANAUGH and JUSTICE KAGAN undermines our analysis. JUSTICE KAVANAUGH claims that we have \u201crewrit[ten]\u201d the CWA, post, at 12 (opinion concurring in judgment), andJUSTICE KAGAN levels similar charges, post, at 3\u20134 (opinionconcurring in judgment). These arguments are more than unfounded. We have analyzed the statutory language indetail, but the separate opinions pay no attention whatsoever to \u00a71362(7), the key statutory provision that limits the CWA\u2019s geographic reach to \u201cthe waters of the United States.\u201d Thus, neither separate opinion even attempts toexplain how the wetlands included in their interpretationfall within a fair reading of \u201cwaters.\u201d Textualist argumentsthat ignore the operative text cannot be taken seriously.
VI In sum, we hold that the CWA extends to only those \u201cwetlands with a continuous surface connection to bodies that are \u2018waters of the United States\u2019 in their own right,\u201d so thatthey are \u201cindistinguishable\u201d from those waters. Rapanos, 547 U. S., at 742, 755 (plurality opinion) (emphasis deleted); see supra, at 22. This holding compels reversal here.The wetlands on the Sacketts\u2019 property are distinguishable
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from any possibly covered waters.
* * * We reverse the judgment of the United States Court ofAppeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
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THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 21\u2013454
MICHAEL SACKETT, ET UX., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 25, 2023]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,concurring.
I join the Court\u2019s opinion in full. The Clean Water Act (CWA) confines the Federal Government\u2019s jurisdiction to \u201c\u2018navigable waters,\u2019\u201d defined as \u201cthe waters of the United States.\u201d 33 U. S. C. \u00a7\u00a71311(a), 1362(7), (12). And the Court correctly holds that the term \u201cwaters\u201d reaches \u201c\u2018only those relatively permanent, standing or continuously flowing bodies of water \u201c\u2018forming geographic[al] features\u2019\u201d that aredescribed in ordinary parlance as \u201cstreams, oceans, rivers, and lakes.\u201d\u2019\u201d Ante, at 14 (quoting Rapanos v. United States, 547 U. S. 715, 739 (2006) (plurality opinion)). It also correctly holds that for a wetland to fall within this definition, it must share a \u201c\u2018continuous surface connection to bodies that are \u201cwaters of the United States\u201d in their own right\u2019\u201d such that \u201c\u2018there is no clear demarcation between \u201cwaters\u201d and wetlands.\u2019\u201d Ante, at 21 (quoting Rapanos, 547 U. S., at 742 (plurality opinion)).
However, like the Rapanos plurality before it, the Courtfocuses only on the term \u201cwaters\u201d; it does not determine the extent to which the CWA\u2019s other jurisdictional terms\u2014\u201cnavigable\u201d and \u201cof the United States\u201d\u2014limit the reach ofthe statute. Ante, at 14\u201318; Rapanos, 547 U. S., at 731 (plurality opinion). I write separately to pick up where the
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Court leaves off.
I The CWA\u2019s jurisdictional terms have a long pedigree and are bound up with Congress\u2019 traditional authority over the channels of interstate commerce. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168, and n. 3, 172, 173\u2013174 (2001) (SWANCC). That traditional authority was limited in two ways. First, the water had to be capable of being used as a highway for interstate or foreign commerce. Second, Congress could regulate such waters only for purposes of their navigability\u2014by, for example, regulating obstructions hindering navigable capacity. By the time of the CWA\u2019s enactment, the New Deal era arguably had relaxed the second limitation; Congress could regulate navigable waters for a wider range of purposes. But, critically, the statutory terms \u201cnavigable waters,\u201d \u201cnavigable waters of the United States,\u201d and \u201cwaters of the United States\u201d were still understood as invokingonly Congress\u2019 authority over waters that are, were, or could be used as highways of interstate or foreign commerce. The CWA was enacted, and must be understood, against that key backdrop.
A As the Court correctly states, \u201cland and water use lies atthe core of traditional state authority.\u201d Ante, at 23; see also ante, at 2. Prior to Independence, the Crown possessed sovereignty over navigable waters in the Colonies, sometimes held in trust by colonial authorities. See R. Adler, The Ancient Mariner of Constitutional Law: The Historical, Yet Declining Role of Navigability, 90 Wash. U. L. Rev. 1643, 1656\u20131659 (2013); R. Walston, The Federal Commerce and Navigation Powers: Solid Waste Agency of Northern Cook County\u2019s Undecided Constitutional Issue, 42 Santa Clara
L. Rev. 699, 721 (2002) (Walston). Upon Independence, this
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sovereignty was transferred to each of the 13 fully sovereignStates. See Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842) (\u201c[W]hen the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government\u201d). Thus, today, States enjoy primary sovereignty over their waters, including navigable waters\u2014stemming either from their status as independentsovereigns following Independence, ibid., or their later admission to the Union on an equal footing with the original States, see Lessee of Pollard v. Hagan, 3 How. 212, 230 (1845) (\u201cThe shores of navigable waters, and the soils under them, were not granted by the Constitution to the UnitedStates, but were reserved to the states respectively. . . . The new states have the same rights, sovereignty, and jurisdiction over this subject as the original states\u201d); see also M.Starr, Navigable Waters of the United States\u2014State andNational Control, 35 Harv. L. Rev. 154, 169\u2013170 (1921).The Federal Government therefore possesses no authority over navigable waters except that granted by the Constitution.
The Federal Government\u2019s authority over certain navigable waters is granted and limited by the Commerce Clause,which grants Congress power to \u201cregulate Commerce withforeign Nations, and among the several States, and with the Indian Tribes.\u201d Art. I, \u00a78, cl. 3. From the beginning, itwas understood that \u201c[t]he power to regulate commerce, includes the power to regulate navigation,\u201d but only \u201cas connected with the commerce with foreign nations, and among the states.\u201d United States v. Coombs, 12 Pet. 72, 78 (1838) (Story, J., for the Court); accord, Gibbons v. Ogden, 9 Wheat. 1, 190 (1824) (\u201cAll America understands . . . the word \u2018commerce,\u2019 to comprehend navigation. It was so un4
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derstood, and must have been so understood, when the constitution was framed\u201d); see also R. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 125\u2013126 (2001) (Barnett); R. Natelson, The Legal Meaning of \u201cCommerce\u201d in the Commerce Clause, 80 St. John\u2019s
L. Rev. 789, 807\u2013810 (2006). In fact, \u201cshipping . . . was at that time the indispensable means for the movement of goods.\u201d Barnett 123. The Commerce Clause thus vests Congress with a limited authority over what we now call the \u201cchannels of interstate commerce.\u201d United States v. Lopez, 514 U. S. 549, 558\u2013559 (1995); see also American Trucking Assns., Inc. v. Los Angeles, 569 U. S. 641, 656\u2013657 (2013) (THOMAS, J., concurring).
This federal authority, however, does not displace States\u2019 traditional sovereignty over their waters. \u201cThe power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie.\u201d Gilman v. Philadelphia, 3 Wall. 713, 724\u2013725 (1866) (emphasis added). And, traditionally, this limited authority was confined to regulation of the channels of interstate commerce themselves. Corfield v. Coryell, 6 F. Cas. 546, 550\u2013551 (No. 3,230) (CC ED Pa. 1823) (Washington, J., for the Court). It encompassed only \u201cthe power to keep them open and free from any obstruction to their navigation\u201d and \u201cto remove such obstructions when they exist.\u201d Gilman, 3 Wall., at 725. Thus, any activity that \u201cinterferes with, obstructs, or preventssuch commerce and navigation, though done on land, maybe punished by congress.\u201d Coombs, 12 Pet., at 78. But, activities that merely \u201caffect\u201d water-based commerce, such asthose regulated by \u201c[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State,\u201d are not within Congress\u2019 channels-of-commerce authority. Gibbons, 9 Wheat., at 203; see also Corfield, 6 F. Cas., at 550.
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This understanding of the limits of Congress\u2019 channelsof-commerce authority prevailed through the end of the 19th century. The Court\u2019s cases consistently recognizedthat Congress has authority over navigable waters for only the limited \u201cpurpose of regulating and improving navigation.\u201d Gibson v. United States, 166 U. S. 269, 271\u2013272 (1897); see also Port of Seattle v. Oregon & Washington
R. Co., 255 U. S. 56, 63 (1921) (\u201cThe right of the United States in the navigable waters within the several States is limited to the control thereof for purposes of navigation\u201d).And, this Court was careful to reaffirm that \u201ctechnical title to the beds of the navigable rivers of the United States is either in the States in which the rivers are situated, or in the owners of the land bordering upon such rivers\u201d as determined by \u201clocal law.\u201d United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 60 (1913).
The River and Harbor Acts of 1890, 1894, and 1899 illustrate the limits of the channels-of-commerce authority. The 1890 Act authorizes the Secretary of War to \u201cprohibi[t]\u201d \u201cthecreation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction.\u201d \u00a710, 26 Stat.
454. The 1894 Act made it unlawful to deposit matter into\u201cany harbor or river of the United States\u201d that the Federal Government has appropriated money to improve and prohibited injuring improvements built by the United States in \u201cany of its navigable waters.\u201d \u00a76, 28 Stat. 363.
Congress consolidated and expanded these authorities in the 1899 Act. Section 10 of the Act prohibits \u201c[t]he creation of any obstruction . . . to the navigable capacity of any of thewaters of the United States,\u201d requires a permit to build \u201cstructures in any . . . water of the United States,\u201d and makes it unlawful \u201cto excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity\u201dof any water, \u201cwithin the limits of any breakwater, or of the channel of any navigable water of the United States.\u201d 30
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Stat. 1151 (codified, as amended, at 33 U. S. C. \u00a7403). In addition, \u00a713 of the Act, sometimes referred to as the \u201cRefuse Act,\u201d prohibits throwing, discharging, or depositing\u201cany refuse matter . . . into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.\u201d 30 Stat. 1152 (codified, as amended, at 33
U. S. C. \u00a7407). Section 13 also prohibits depositing material \u201con the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shallbe liable to be washed into such navigable water . . . whereby navigation shall or may be impeded or obstructed.\u201d
Ibid.
Three things stand out about these provisions. First, they use the terms \u201cnavigable water,\u201d \u201cwater of the UnitedStates,\u201d and \u201cnavigable water of the United States\u201d interchangeably. 33 U. S. C. \u00a7\u00a7403 and 407; see also V. Albrecht & S. Nickelsburg, Could SWANCC Be Right? A New Lookat the Legislative History of the Clean Water Act, 32 Env.
L. Rev. 11042, 11044 (2002) (Albrecht & Nickelsburg). As a result, courts have done the same in decisions interpreting the River and Harbor Acts. See, e.g., United States v. Stoeco Homes, Inc., 498 F. 2d 597, 608\u2013609 (CA3 1974); New England Dredging Co. v. United States, 144 F. 932, 933\u2013934 (CA1 1906); Blake v. United States, 181 F. Supp. 584, 587\u2013588 (ED Va. 1960).
Second, Congress asserted its authority only to the extentthat obstructions or refuse matter could impede navigationor navigable capacity. Thus, in United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690 (1899), this Court recognized that any \u201cact sought to be enjoined\u201d under the 1890 Act must be \u201cone which fairly and directly tends to obstruct(that is, interfere with or diminish) the navigable capacityof a stream.\u201d Id., at 709; accord, Lake Shore & Michigan Southern R. Co. v. Ohio, 165 U. S. 365, 369 (1897) (holding
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that federal jurisdiction over \u201cnavigable waters\u201d was limited to preventing \u201cinterfering with commerce\u201d). Similarly,in Wisconsin v. Illinois, 278 U. S. 367 (1929), this Court interpreted the 1899 Act in light of the constitutional prohibition on Congress \u201carbitrarily destroy[ing] or impair[ing]the rights of riparian owners by legislation which has noreal or substantial relation to the control of navigation or appropriateness to that end.\u201d Id., at 415.1 The touchstone, thus, remained actual navigation.
Third, \u00a713 of the Act requires some form of surface waterconnection between a tributary and traditionally navigable waters. See 33 U. S. C. \u00a7407 (prohibiting depositing refuse \u201cinto any tributary of any navigable water from which the same shall float or be washed into such navigable water\u201d). To be sure, the Refuse Act also prohibits leaving refuse \u201conthe bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water.\u201d Ibid. But, this prohibition reflects nothing more than Congress\u2019 traditional authority to regulate acts done on land that directlyimpair the navigability of traditionally navigable waters.See Rio Grande Dam & Irrigation Co., 174 U. S., at 708 (explaining that the Act reaches \u201cany obstruction to the navigable capacity, and anything, wherever done or however
\u2014\u2014\u2014\u2014\u2014\u2014
1Courts had long carefully enforced limits on Congress\u2019 navigation authority in prosecutions brought under the Act of July 7, 1838, ch. 191, 5Stat. 304 (Steamboat Acts of 1838), which prohibited the transportationof goods \u201cupon the bays, lakes, rivers, or other navigable waters of the United States\u201d by certain steamboats. See, e.g., The Seneca, 27 F. Cas. 1021 (No. 16,251) (DC Wis. 1861); see also The James Morrison, 26
F. Cas. 579, 582 (No. 15,465) (DC Mo. 1846) (holding that the 1838 Act did not reach a ship whose \u201cemployment ha[d] no other than a remoteconnection with \u2018commerce or navigation among the several states;\u2019 no more connection than has the farmer who cultivates hemp, tobacco or cotton for a market in other states\u2014the miner who digs and smeltslead\u2014the manufacturer who manufactures for the same market, or the traveler who intends purchasing any of these articles\u201d).
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done, . . . which tends to destroy the navigable capacity ofone of the navigable waters of the United States\u201d); see also Northern Pacific R. Co. v. United States, 104 F. 691, 693 (CA8 1900); Coombs, 12 Pet., at 78. It does not mean that the land itself is a navigable water.2
The history of federal regulation of navigable waters demonstrates that Congress\u2019 authority over navigation, astraditionally understood, was narrow but deep. It only applied to a discrete set of navigable waters and could only be used to keep those waters open for interstate commerce.See Port of Seattle, 255 U. S., at 63; Rio Grande Dam & Irrigation Co., 174 U. S., at 709. Yet, where Congress had authority, it displaced the States\u2019 traditional sovereigntyover their navigable waters and allowed Congress to regulate activities even on land that could directly cause obstructions to navigable capacity. Gilman, 3 Wall., at 724\u2013 725; Coombs, 12 Pet., at 78.
In light of the depth of this new federal power, it wascarefully limited\u2014mere \u201ceffects\u201d on interstate commercewere not sufficient to trigger Congress\u2019 navigation authority. As one District Court presciently observed in interpreting the term \u201cnavigable waters of the United States\u201d in the Steamboat Act of 1838:
\u201cTo make a particular branch of commerce or trade within a state, a part of the commerce among the several states, it would not be sufficient that it was remotely connected with that commerce among the several states; for almost everything and every occupationand employment in life are remotely connected with
\u2014\u2014\u2014\u2014\u2014\u2014
2The early 20th century also saw the Reclamation Act of 1902, ch. 1093, 32 Stat. 388; Federal Power Act, ch. 285, 41 Stat. 1063; Oil Pollution Act, 1924, ch. 316, 43 Stat. 604; and Flood Control Act of 1936, ch. 688, 49 Stat. 1570, all of which relied on navigability. See Walston 724\u2013
726. Although the Acts were also designed to achieve incidental benefitssuch as pollution control, Congress located its authority in preserving navigation. Ibid.
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that commerce or navigation. And if congress has the right to regulate every employment or pursuit thus remotely connected with that commerce, of which they have the control, then it has the right to regulate nearly the entire business and employment of the citizens of the several states. . . . Yet, if congress has the power toregulate all these employments, and a thousand othersequally connected with that commerce, then it can regulate nearly all the concerns of life, and nearly all the employments of the citizens of the several states; and the state governments might as well be abolished. It is not sufficient, then, that navigation, or trade, or business of any kind, within a state, be remotely connected, or, perhaps, connected at all with \u2018commerce with foreign nations, or among the several states, or with the Indian tribes,\u2019 it should be a part of that commerce, toauthorize congress to regulate it.\u201d The James Morrison, 26 F. Cas. 579, 581 (No. 15,465) (DC Mo. 1846).
The Court\u2019s observation that \u201cfederal regulation was largely limited to ensuring that \u2018traditional navigable waters\u2019 . . . remained free of impediments,\u201d ante, at 2, thus does no more than reflect the original understanding of the federal authority over navigable waters.
B As noted above, the scope of Congress\u2019 authority over waters was defined by the traditional concept of navigability, imported with significant modifications from the Englishcommon law.3 Thus, Congress could regulate only \u201cnaviga\u2014\u2014\u2014\u2014\u2014\u2014
3The English rule tied navigability to the ebb and flow of the tides, butbegan to be eroded in America as early as the Northwest Ordinance of 1787 due to the superior commercial capacity of American inland rivers. See The Daniel Ball, 10 Wall. 557, 563 (1871); Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 454\u2013457 (1852); see also Economy Light & Power
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ble waters.\u201d Consistent with that backdrop, the term \u201cnavigable waters\u201d\u2014used interchangeably with \u201cwaters of the United States\u201d and \u201cnavigable waters of the United States\u201d\u2014referred to the waters subject to Congress\u2019 traditional authority over navigable waters until the enactment of the CWA.
1 The term \u201cnavigable waters\u201d has been in use since the founding to refer to the highways of commerce that were key to the Nation\u2019s development. Great cities like Philadelphia and St. Louis emerged at first as commercial portsalong these navigable waters. The Framers recognized that \u201cProvidence has in a particular manner blessed\u201d our country with \u201c[a] succession of navigable waters\u201d that \u201cbind [theNation] together; while the most noble rivers in the world,running at convenient distances, present [Americans] with highways for the easy communication of friendly aids and the mutual transportation and exchange of their variouscommodities.\u201d The Federalist No. 2, p. 38 (C. Rossiter ed. 1961) (J. Jay). These \u201cvast rivers, stretching far inland\u201d have been of \u201ctranscendent importance\u201d to our Nation\u2019s economic expansion by forming \u201cgreat highways\u201d for commerce. L. Houck, Law of Navigable Rivers xiii (1868). This Court authoritatively set out the scope of the term\u201cnavigable waters of the United States\u201d in the seminal case of The Daniel Ball, 10 Wall. 557 (1871). That case arose under the Steamboat Act of 1838, which prohibited thetransportation of goods \u201cupon the bays, lakes, rivers, or other navigable waters of the United States.\u201d \u00a72, 5 Stat.
\u2014\u2014\u2014\u2014\u2014\u2014 Co. v. United States, 256 U. S. 113, 120 (1921) (\u201c[I]t is curious and interesting that the importance of these inland waterways, and the inappropriateness of the tidal test in defining our navigable waters, was thus recognized by the Congress of the Confederation [in the Northwest Ordinance] more than 80 years before this court decided The Daniel Ball . .. and more than 60 years before The Propeller Genesee Chief \u201d).
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304. This Court held that the term \u201cnavigable\u201d refers towaters that are \u201cnavigable in fact,\u201d meaning that \u201cthey areused, 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.\u201d The Daniel Ball, 10 Wall., at
563. The Court then explained that navigable waters are\u201cof the United States,\u201d \u201cin contradistinction from the navigable waters of the States, when they form in their ordinarycondition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.\u201d Ibid.; see also The Montello, 11 Wall. 411, 415 (1871) (\u201cIf . . . the river is not of itself a highway for commerce with other States or foreign countries, or does not form such highwayby its connection with other waters, and is only navigable between different places within the State, then it is not a navigable water of the United States, but only a navigable water of the State\u201d). It is this \u201cjunction\u201d between waters to\u201cfor[m] a continued highway for commerce, both with otherStates and with foreign countries,\u201d that brings the water \u201cunder the direct control of Congress in the exercise of itscommercial power.\u201d The Daniel Ball, 10 Wall., at 564. The definition of a \u201cnavigable water of the United States\u201d was thus linked directly to the limits on Congress\u2019 commerce authority: A navigable water of the United States was one that was ordinarily used for interstate or foreign commerce.
Wetlands were generally excluded from this definition. In Leovy v. United States, 177 U. S. 621 (1900), for example, the Court employed the Daniel Ball test to hold that the term \u201cnavigable waters of the United States,\u201d as used in the 1890 River and Harbor Act, did not \u201cprevent the exercise by the State of Louisiana of its power to reclaim swamp and overflowed lands by regulating and controlling the current
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of small streams not used habitually as arteries of interstate commerce.\u201d 177 U. S., at 632. The Court observed that applying the Act to wetlands reclamation \u201cwould extend the paramount jurisdiction of the United States overall the flowing waters in the States.\u201d Id., at 633. \u201cIf such were the necessary construction of the\u201d term \u201cnavigable water,\u201d the Court explained, the River and Harbor Act\u2019s \u201cvalidity might well be questioned.\u201d Ibid. But, the Court declined to interpret the Act to reach the wetlands, because itrecognized that the phrase \u201cnavigable waters of the UnitedStates\u201d encompassed only those waters reached by the traditional channels-of-commerce authority:
\u201cWhen it is remembered that the source of the power of the general government to act at all in this matter arises out of its power to regulate commerce with foreign countries and among the States, it is obvious that what the Constitution and the acts of Congress have in view is the promotion and protection of commerce in itsinternational and interstate aspect, and a practicalconstruction must be put on these enactments as intended for such large and important purposes.\u201d Ibid.
The Court thus held that the mere use of a wetland by fishermen was not sufficient to make the wetland a navigablewater of the United States; it \u201cwas not shown that passengers were ever carried through it, or that freight destined to any other State than Louisiana, or, indeed, destined for any market in Louisiana, was ever, much less habitually,carried through it.\u201d Id., at 627.4
\u2014\u2014\u2014\u2014\u2014\u2014
4 Leovy v. United States also reflected the law\u2019s longstanding hostility to wetlands: \u201cIf there is any fact which may be supposed to be known byeverybody, and, therefore, by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances.\u201d 177 U. S., at 636. Traditionally, the only time wetlands werethe subject of federal legislation was to aid the States in draining them.
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The Daniel Ball test, with minor variations, marked the limits of federal jurisdiction over waters up to the enactment of the CWA. For instance, in Economy Light & Power Co. v. United States, 256 U. S. 113 (1921), the Court applied The Daniel Ball but expanded it to hold that the River andHarbor Act of 1899 reaches waters that are not currently capable of supporting interstate commerce, though theyonce did. 256 U. S., at 123\u2013124. And, in United States v. Appalachian Elec. Power Co., 311 U. S. 377 (1940), the Court applied The Daniel Ball to reach waters that could be made navigable with reasonable and feasible improvement.311 U. S., at 408\u2013409. While these cases expanded the outer boundaries of the term, creating an expanded form of the Daniel Ball test, they reflect the Court\u2019s longstandingview that the statutory term \u201cnavigable water\u201d required application of the Daniel Ball test.
2 In the New Deal era, as is well known, this Court adopteda greatly expanded conception of Congress\u2019 commerce authority by permitting Congress to regulate any private intrastate activity that substantially affects interstate commerce, either by itself or when aggregated with manysimilar activities. See Wickard v. Filburn, 317 U. S. 111, 127\u2013129 (1942); see also United States v. Darby, 312 U. S. 100, 119 (1941). Yet, this expansion did not fundamentallychange the Court\u2019s understanding that the term \u201cnavigable waters\u201d referred to waters used for interstate commerce. Thus, in Appalachian Elec., the Court continued to applythe concept of navigability to determine the scope of Congress\u2019 Commerce Clause authority to require licenses under
\u2014\u2014\u2014\u2014\u2014\u2014 See, e.g., Swamp Land Act of 1850, ch. 84, 9 Stat. 519; see also S. Johnson, Wetlands Law: A Course Source 25\u201326 (2d ed. 2018). Wetlands preservation only gained traction due, in large part, to advances in firearms technology that made waterfowl hunting feasible. G. Baldassarre & E. Bolen, Waterfowl Ecology and Management 10\u201314 (1994).
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the Federal Water Power Act for the construction of hydroelectric dams in \u201cnavigable waters.\u201d 311 U. S., at 406\u2013410. Only after applying the Daniel Ball definition to determine that the river in question was navigable did the Court holdthat Congress had plenary authority over the erection ofstructures in the river, regardless of whether the structureactually impeded navigability. 311 U. S., at 423\u2013426. While this represented an expansive application of the old concept that Congress can prevent obstructions to navigable capacity, see supra, at 4, 7\u20138, Appalachian Elec. made clear that the term \u201cnavigable waters\u201d remained tethered to Congress\u2019 traditional channels-of-commerce authority\u2014notto the broader conceptions of the commerce authorityadopted by the Court at that time.
The next year, in Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508 (1941), the Court reaffirmed that the term \u201cnavigable waters,\u201d this time as used in the Flood Control Act of 1936, was to be interpreted in light of theexpanded Daniel Ball test. 313 U. S., at 522\u2013525. Significantly, Oklahoma was decided mere months after Darby, one of the most significant cases expanding the scope of thecommerce authority. 312 U. S., at 119. However, Oklahoma did not so much as mention Darby in construing the jurisdiction Congress conveyed in the term \u201cnavigable waters.\u201d Instead, it cited Darby only in passing and to supportthe argument that, once a river is deemed navigable under the channels-of-commerce authority, Congress has authority to protect \u201cthe nation\u2019s arteries of commerce\u201d by regulating intrastate activities on nonnavigable parts and tributaries of the navigable river lest such activities \u201cimpai[r] navigation itself.\u201d Oklahoma, 313 U. S., at 525. This was nothing more than an application of the principle that Congress can regulate activities that obstruct navigable capacity. Thus, even as the Court expanded the Commerce Clause in other contexts, it continued to understand that the term \u201cnavigable waters\u201d refers solely to the aquatic
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channels of interstate commerce over which Congress traditionally exercised authority.
3 This understanding of the term \u201cnavigable waters\u201d\u2014i.e., as shorthand for waters subject to Congress\u2019 authority under the Daniel Ball test\u2014persisted up to the enactment of the CWA. See, e.g., Stoeco Homes, Inc., 498 F. 2d, at 608\u2013 609; United States v. Joseph G. Moretti, Inc., 478 F. 2d 418, 428\u2013429 (CA5 1973); see also D. Guinn, An Analysis of Navigable Waters of the United States, 18 Baylor L. Rev. 559, 579 (1966) (\u201c[T]he test of The Daniel Ball and Appalachian Power Co. are religiously cited as being the basis for the holding on the issue of navigability\u201d). As a court observed near the time of the CWA\u2019s enactment, \u201c[a]lthough the definition of \u2018navigability\u2019 laid down in The Daniel Ball has subsequently been modified and clarified, its definition of\u2018navigable water of the United States,\u2019 insofar as it requiresa navigable interstate linkage by water, appears to remainunchanged.\u201d Hardy Salt Co. v. Southern Pacific Transp. Co., 501 F. 2d 1156, 1167 (CA10 1974) (citations omitted). This Court\u2019s cases, too, continued to apply traditional navigability concepts in cases under the River and Harbor Acts right up to the CWA\u2019s enactment. See United States v. Standard Oil Co., 384 U. S. 224, 226 (1966) (holding that spilling oil in a navigable water was prohibited by the Refuse Act (\u00a713 of the 1899 Act) because \u201cits presence in our rivers and harbors is both a menace to navigation and a pollutant\u201d); United States v. Republic Steel Corp., 362 U. S. 482, 487\u2013491 (1960) (\u201cdiminution of the navigable capacity of a waterway\u201d required for violation of the Refuse Act). Thus, on the eve of the CWA\u2019s enactment, the term \u201cnavigable waters\u201d meant those waters that are, were, or could be used as highways of interstate or foreign commerce.
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This history demonstrates that Congress was not writingon a blank slate in the CWA, which defines federal jurisdiction using the same terms used in the River and Harbor Acts: \u201cnavigable waters\u201d and \u201cthe waters of the United States,\u201d 33 U. S. C. \u00a7\u00a71311(a), 1362(7), (12). As explainedabove, courts and Congress had long used the terms \u201cnavigable water,\u201d \u201cnavigable water of the United States,\u201d and \u201cthe waters of the United States\u201d interchangeably to signify those waters to which the traditional channels-of-commerce authority extended. See supra, at 6. The terms \u201cnavigable waters\u201d and \u201cwaters of the United States\u201d shared a core requirement that the water be a \u201chighway over which commerce is or may be carried,\u201d with the term \u201cof the UnitedStates\u201d doing the independent work of requiring that suchcommerce \u201cbe carried on with other States or foreign countries.\u201d The Daniel Ball, 10 Wall., at 563. The text of the CWA thus reflects the traditional balance between federal and state authority over navigable waters, as set out by The Daniel Ball. It would be strange indeed if Congress sought to effect a fundamental transformation of federal jurisdiction over water through phrases that had been in use to describe the traditional scope of that jurisdiction for well over a century and that carried a well-understood meaning.5
\u2014\u2014\u2014\u2014\u2014\u2014
5In fact, when Congress has wished to depart from this traditional meaning, it has done so expressly, as in parts of the Federal Power Act,\u00a723, 41 Stat. 1075 (requiring approval for dam construction \u201cacross, along, over, or in any stream or part thereof, other than those defined herein this chapter as navigable waters\u201d); the Federal Water PollutionControl Act, ch. 758, \u00a72(a), 62 Stat. 1155 (as amended, 86 Stat. 816) (authorizing federal-state cooperation to abate water pollution in \u201cinterstatewaters\u201d and their tributaries); and the Water Quality Act of 1965, 79Stat. 905\u2013906 (authorizing grants to research abatement of pollutioninto \u201cany waters\u201d); see Hardy Salt Co. v. Southern Pacific Transp. Co., 501 F. 2d 1156, 1168 (CA10 1974) (noting that Congress only departsfrom the expanded Daniel Ball test by using \u201cclear and explicit language,\u201d as it did in parts of the Federal Power Act).
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The Army Corps of Engineers originally understood theCWA in precisely this way. In its 1974 regulation establishing the first CWA \u00a7404 permitting program,6 the Corps interpreted the term \u201cthe waters of the United States\u201d to establish jurisdiction over the traditional navigable watersas determined by the expanded Daniel Ball test, noting also that the term is limited by Congress\u2019 navigation authority.39 Fed. Reg. 12115. The Corps anchored its jurisdiction in the expanded Daniel Ball test, defining \u201cnavigable waters\u201dto include \u201cthose waters of the United States which are subject to the ebb and flow of the tide, and\/or are presently, or have been in the past, or may be in the future susceptiblefor use for purposes of interstate or foreign commerce.\u201d 33 CFR \u00a7209.120(d)(1) (1974); see also \u00a7\u00a7209.260(d)(1)\u2013(3) (requiring \u201c[p]ast, present, or potential presence of interstate or foreign commerce,\u201d \u201c[p]hysical capabilities for use bycommerce,\u201d and \u201c[d]efined geographic limits of the waterbody\u201d). The regulations also made clear that traditionalnavigability factors were the baseline for CWA jurisdiction: \u201cIt is the water body\u2019s capability of use by the public for purposes of transportation or commerce which is the determinative factor.\u201d \u00a7209.260(e)(1).
Almost immediately, however, a few courts and the recently created Environmental Protection Agency (EPA) rejected this interpretation. Instead, they interpreted the CWA to assert the full extent of Congress\u2019 New Deal eraauthority to regulate anything that substantially affects interstate commerce by itself or in the aggregate. See United States v. Ashland Oil & Transp. Co., 504 F. 2d 1317, 1323\u2013 1329 (CA6 1974); P. F. Z. Properties, Inc. v. Train, 393
F. Supp. 1370, 1381 (DC 1975); National Resource Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975);
\u2014\u2014\u2014\u2014\u2014\u2014
6Section 404 authorizes the Corps to \u201cissue permits . . . for the discharge of dredged or fill material into the navigable waters at specified disposal sites.\u201d 33 U. S. C. \u00a7\u00a71344(a), (d).
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United States v. Holland, 373 F. Supp. 665, 669, 672\u2013674(MD Fla. 1974); 40 CFR \u00a7125.1(o) (1974) (initial EPA CWA definition). The courts that reached this conclusion relied almost exclusively on legislative history and statutory purpose. See, e.g., Holland, 373 F. Supp., at 672 (\u201cThe foregoing [legislative history] compels the Court to conclude thatthe former test of navigability was indeed defined away in the [CWA]\u201d). But signals from legislative history cannot rebut clear statutory text, and the text of the CWA employs words that had long been universally understood to reachonly those waters subject to Congress\u2019 channels-ofcommerce authority. See supra, at 15.
These courts and the EPA had only one textual hook for their interpretation: In defining the term \u201cnavigable waters\u201d as \u201cthe waters of the United States,\u201d the CWA seemed to drop the term \u201cnavigable\u201d from the operative part of thedefinition. Seizing on this phrasing, the EPA\u2019s general counsel asserted in 1973 that \u201cthe deletion of the word \u2018navigable\u2019 eliminates the requirement of navigability. The onlyremaining requirement, then, is that pollution of waterscovered by the bill must be capable of affecting interstatecommerce.\u201d 1 EPA Gen. Counsel Op. 295 (1973). Similarly,the District Court that vacated the Corps\u2019 original CWAdefinition held, without any analysis or citation, that the term \u201cthe waters of the United States\u201d in the CWA is \u201cnot limited to the traditional tests of navigability.\u201d National Resource Defense Council, 392 F. Supp., at 671.
That interpretation cannot be right. For one, the terms \u201cnavigable waters\u201d and \u201cthe waters of the United States\u201d had long been used synonymously by courts and Congress.The CWA simply used the terms in the same manner as theRiver and Harbor Acts. Moreover, no source prior to the CWA had ever asserted that the term \u201cthe waters of the United States,\u201d when not modified by \u201cnavigable,\u201d reached any water that may affect interstate commerce. Instead, The Daniel Ball made clear that \u201c[t]he phrase \u2018waters of the
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United States, in contradistinction from the navigable waters of the States,\u2019 . . . distinguishes interstate from intrastate waters.\u201d Albrecht & Nickelsburg 11049 (quoting The Daniel Ball, 10 Wall., at 563); accord, 1 A. Knauth, Benedict on Admiralty \u00a744, p. 96 (6th ed. 1940) (\u201cThe inland lakes of various States are navigable but, having no navigable outlet linking them with our system of water-ways, have neverbeen held to be public waters of the United States\u201d (emphasis added)). The text of the CWA extends jurisdiction to\u201cnavigable waters,\u201d and\u2014precisely tracking The Daniel Ball\u2014clarifies that it reaches \u201cthe waters of the United States,\u201d rather than the navigable waters of the States.
Thus, the CWA\u2019s use of the phrase \u201cthe waters of the United States\u201d reinforces, rather than lessens, the need for a water to be at least part of \u201ca continued highway overwhich commerce is or may be carried on with other Statesor foreign countries in the customary modes in which suchcommerce is conducted by water.\u201d The Daniel Ball, 10 Wall., at 563. At most, the omission of the word \u201cnavigable\u201d signifies that the CWA adopts the expanded Daniel Ball test\u2014that includes waters that are, have been, or can be reasonably made navigable in fact\u2014in its statutory provisions. The Federal Government\u2019s interpretation, by contrast, renders the use of the term \u201cnavigable\u201d a nullity and involves an unprecedented and extravagant reading of thewell-understood term of art \u201cthe waters of the United States.\u201d See Albrecht & Nickelsburg 11049 (\u201cEPA\u2019s conclusion is ahistorical as well as illogical\u201d).7 \u201c[T]he waters of the \u2014\u2014\u2014\u2014\u2014\u2014
7To be sure, the CWA is more aggressive in regulating navigable waters than the River and Harbor Acts. But, the increased stringency is not accomplished by expanding jurisdiction. The Acts use the same jurisdictional terms. Instead, the difference between them lies in the expanded scope of activities that the CWA regulates and its shift from anenforcement and injunctive regime to a previolation licensing regime. See Albrecht & Nickelsburg 11046. I express no view on the constitutionality of this regime as applied to navigable waters or on the Court\u2019s holding in United States v. Appalachian Elec. Power Co., 311 U. S. 377
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United States\u201d does not mean any water in the United States.
There would be little need to explain any of this if theagencies had not effectively flouted our decision in SWANCC, which restored navigability as the touchstone of federal jurisdiction under the CWA, and rejected the keyarguments supporting an expansive interpretation of the CWA\u2019s text. We expressly held that Congress\u2019 \u201cuse of the phrase \u2018waters of the United States\u2019\u201d in the CWA is not \u201ca basis for reading the term \u2018navigable waters\u2019 out of the statute\u201d\u2014directly contradicting the EPA\u2019s 1973 interpretation,upon which every subsequent expansion of its authority has been based. 531 U. S., at 172. We also held that the Corpsdid not \u201cmist[ake] Congress\u2019 intent\u201d when it promulgatedits 1974 regulations, under which \u201c\u2018the determinative factor\u2019\u201d for navigability was a \u201c\u2018water body\u2019s capability of useby the public for purposes of transportation or commerce.\u2019\u201d Id., at 168 (quoting 33 CFR \u00a7209.260(e)(1)). In doing so, werejected reliance on the CWA\u2019s \u201cambiguous\u201d legislative history, which the EPA had used \u201cto expand the definition of \u2018navigable waters\u2019\u201d to the outer limit of the commerce authority as interpreted in the New Deal. 531 U. S., at 168,
n. 3.8 Instead, we made clear that Congress did not intend \u2014\u2014\u2014\u2014\u2014\u2014 (1940), that Congress can regulate things in navigable waters for purposes other than removing obstructions to navigable capacity. I note, however, that before the New Deal era, courts consistently construed statutes to authorize only federal actions preserving navigable capacityin order to avoid exceeding Congress\u2019 navigation authority. See supra, at 8\u201313. 8The historical context demonstrates that it was the Corps\u2019 failure to regulate to the full extent of Congress\u2019 navigation power, not its commerce power generally, that led to the enactment of the CWA. See Albrecht & Nickelsburg, 11047 (explaining that the CWA\u2019s legislative history is better interpreted \u201cas the Supreme Court in SWANCC read it, to mean simply that Congress intended to override previous, unduly narrow agency interpretations to assert its broadest constitutional authority
over the traditional navigable waters\u201d); see also S. Bodine, Examiningthe Term \u201cWaters of the United States\u201d in Its Historical Context, C.
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\u201cto exert anything more than its commerce power over navigation.\u201d Ibid.; see also id., at 173 (rejecting the Government\u2019s argument that the CWA invokes \u201cCongress\u2019 power to regulate intrastate activities that \u2018substantially affect\u2019 interstate commerce\u201d).
SWANCC thus interpreted the text of the CWA as implementing Congress\u2019 \u201ctraditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made\u201d\u2014i.e., the expanded Daniel Ball test. 531 U. S., at 172 (citing Appalachian Elec., 311 U. S., at 407\u2013408).9 And, consistent with the traditional link between navigability and the limits of Congress\u2019 regulatory
\u2014\u2014\u2014\u2014\u2014\u2014 Boyden Gray Center for the Study of the Administrative State Policy Brief No. 4 (2022).
9Section 404(g), added by the 1977 CWA Amendments, does not demonstrate that the CWA departs from traditional conceptions of navigability. That provision states that States may administer permit programs for discharges into \u201cnavigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstateor foreign commerce . . . , including wetlands adjacent thereto).\u201d 91 Stat. 1601 (codified, as amended, at 33 U. S. C. \u00a71344(g)). This provision thusauthorizes States to establish their own permit programs over a discreteclass of traditionally navigable waters of the United States: those that once were navigable waters of the United States, but are no longer navigable in fact. See Economy Light & Power Co., 256 U. S., at 123\u2013124. Some have asserted that this nonjurisdictional provision\u2014the functionof which in the statute is to expand state authority\u2014signals that Congress actually intended an unprecedented expansion of federal authority over the States. Rapanos v. United States, 547 U. S. 715, 805\u2013806 (2006) (Stevens, J., dissenting); see also post, at 3\u20135 (KAVANAUGH, J., concurring in judgment); post, at 1\u20133 (KAGAN, J., concurring in judgment). But, as the Court explains, not only is \u00a7404(g) not the relevant definitional provision, its reference to \u201cwetlands\u201d is perfectly consistent with the commonsense recognition that some wetlands are indistinguishable fromnavigable waters with which they have continuous surface connections. Ante, at 18\u201322, 27. To infer Congress\u2019 intent to upend over a century of settled understanding and effect an unprecedented transfer of authority over land and water to the Federal Government, based on nothing more
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authority, SWANCC noted that any broader interpretation would raise \u201csignificant constitutional and federalism questions\u201d and \u201cresult in a significant impingement of theStates\u2019 traditional and primary authority over land and water use.\u201d 531 U. S., at 174. Both in its holdings and in its mode of analysis, SWANCC cannot be reconciled with the agencies\u2019 sharp departure from the centuries-old understanding of navigability and the traditional limits of Congress\u2019 channels-of-commerce authority.
In sum, the plain text of the CWA and our opinion in SWANCC demonstrate that the CWA must be interpretedin light of Congress\u2019 traditional authority over navigable waters. See Albrecht & Nickelsburg 11055 (noting that SWANCC \u201cstates more than once that Congress\u2019 use of the term \u2018navigable waters\u2019 signifies that Congress intended toexercise its traditional authority over navigable waters, and not its broader power over all things that substantially affect commerce\u201d). Yet, for decades, the EPA (of its own license) and the Corps (under the compulsion of an unreasoned and since discredited District Court order) have issued substantively identical regulatory definitions of \u201cthe waters of the United States\u201d that completely ignore navigability and instead expand the CWA\u2019s coverage to the outer limits of the Court\u2019s New Deal-era Commerce Clause precedents.
III This case demonstrates the unbounded breadth of the jurisdiction that the EPA and the Corps have asserted under the CWA. The regulatory definition applied to the Sacketts\u2019 property declares \u201cintrastate\u201d waters, wetlands, and various other wet things to be \u201cwaters of the United States\u201d iftheir \u201cuse, degradation or destruction . . . could affect inter\u2014\u2014\u2014\u2014\u2014\u2014
than a negative inference from a parenthetical in a subsection that preserves state authority, is counterintuitive to say the least.
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state or foreign commerce.\u201d 40 CFR \u00a7230.3(s)(3) (2008) (emphasis added). To leave no doubt that the agencies have entirely broken from traditional navigable waters, they give several examples of qualifying waters: those that \u201care orcould be used by interstate or foreign travelers for recreational or other purposes,\u201d those \u201c[f]rom which fish or shellfish are or could be taken and sold in interstate or foreigncommerce,\u201d those that \u201care used or could be used for industrial purposes by industries in interstate commerce,\u201d \u201c[t]ributaries of \u201d any such waters, and \u201c[w]etlands adjacentto\u201d any such waters. \u00a7\u00a7230.3(s)(3)(i)\u2013(iii), (5), (7). This definition and others like it are premised on the fallacy repudiated in SWANCC: that the text of the CWA expands federal jurisdiction beyond Congress\u2019 traditional \u201ccommerce power over navigation.\u201d 531 U. S., at 168, n. 3.
Nonetheless, under these boundless standards, the agencies have \u201casserted jurisdiction over virtually any parcel ofland containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittentlyflow,\u201d including \u201cstorm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.\u201d Rapanos, 547 U. S., at 722 (plurality opinion). The agencies\u2019 definition \u201cengulf[s] entire cities and immense arid wastelands\u201d alike. Ibid. Indeed, because \u201cthe entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface,\u201d \u201cany plot of land containing such a channel may potentially be regulated.\u201d Ibid.
If this interpretation were correct, the only prudent move for any landowner in America would be to ask the Federal Government for permission before undertaking any kind of development. See Tr. of Oral Arg. 86, 116\u2013117. This regimeturns Congress\u2019 traditionally limited navigation authority on its head. The baseline under the Constitution, the CWA, and the Court\u2019s precedents is state control of waters. See
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SWANCC, 531 U. S., at 174 (reaffirming \u201cthe States\u2019 traditional and primary power over land and water use\u201d); Leovy, 177 U. S., at 633 (repudiating an interpretation of the 1899 Act that would render practically every \u201ccreek or stream in the entire country\u201d a \u201cnavigable water of the United States\u201dand \u201csubject the officers and agents of a State . . . to fine and imprisonment\u201d for draining a swamp \u201cunless permission [was] first obtained from the Secretary of War\u201d). Bycontrast, the agencies\u2019 interpretation amounts to a federal police power, exercised in the most aggressive possible way.
Thankfully, applying well-established navigability rulesmakes this a straightforward case. The \u201cwetlands\u201d on the Sacketts\u2019 property are not \u201cwaters of the United States\u201d for several independently sufficient reasons. First, for the reasons set out by the Court, the Sacketts\u2019 wetlands are not \u201cwaters\u201d because they lack a continuous surface connectionwith a traditional navigable water. See ante, at 27. Second, the nonnavigable so-called \u201ctributary\u201d (really, a roadside ditch) across the street from the Sacketts\u2019 property is not a water of the United States because it is not, has never been, and cannot reasonably be made a highway of interstate or foreign commerce. See SWANCC, 531 U. S., at 172. Third, the agencies have not attempted to establish that PriestLake is a navigable water under the expanded Daniel Ball test. The lake is purely intrastate, and the agencies havenot shown that it is a highway of interstate or foreign commerce. Instead, the agencies rely primarily upon interstatetourism and the lake\u2019s attenuated connection to navigable waters. See U. S. Army Corps of Engineers, G. Rayner, Priest Lake Jurisdictional Determination (Feb. 27, 2007);see also Brief for National Association of Home Builders of the United States as Amicus Curiae 21\u201324. But, this is likely insufficient under the traditional navigability tests towhich the CWA pegs jurisdiction. See supra, at 10\u201313; accord, Tr. of Oral Arg. 119 (EPA counsel conceding that Congress \u201chasn\u2019t used its full Commerce Clause authority\u201d in
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the CWA). Finally, even assuming that a navigable water is involved, the agencies have not established that the Sacketts\u2019 actions would obstruct or otherwise impede navigable capacity or the suitability of the water for interstate commerce. See Rio Grande Dam & Irrigation Co., 174 U. S., at 709.
This is not to say that determining whether a water qualifies under the CWA is always easy. But, it is vital that we ask the right question in determining what constitutes \u201cthewaters of the United States\u201d: whether the water is within Congress\u2019 traditional authority over the interstate channels of commerce. Here, no elaborate analysis is required to know that the Sacketts\u2019 land is not a water, much less a water of the United States.
IV What happened to the CWA is indicative of deeper problems with the Court\u2019s Commerce Clause jurisprudence.The eclipse of Congress\u2019 well-defined authority over the channels of interstate commerce tracks the Court\u2019s expansion of Congress\u2019 power \u201c[t]o regulate Commerce with foreign Nations, and among the several States, and with theIndian Tribes.\u201d Art. I, \u00a78, cl. 3. As I have explained at length, the Court\u2019s Commerce Clause jurisprudence hassignificantly departed from the original meaning of the Constitution. See Gonzales v. Raich, 545 U. S. 1, 58\u201359 (2005) (dissenting opinion); Lopez, 514 U. S., at 586\u2013602 (concurring opinion). \u201cThe Clause\u2019s text, structure, and history all indicate that, at the time of the founding, the term\u2018\u201ccommerce\u201d consisted of selling, buying, and bartering, aswell as transporting for these purposes.\u2019\u201d Raich, 545 U. S., at 58. This meaning \u201cstood in contrast to productive activities like manufacturing and agriculture,\u201d and founding era sources demonstrate that \u201cthe term \u2018commerce\u2019 [was] consistently used to mean trade or exchange\u2014not all economically gainful activity that has some attenuated connection
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to trade or exchange.\u201d Ibid. (citing Lopez, 514 U. S., at 586\u2013 587 (THOMAS, J., concurring); Barnett 112\u2013125).10 By departing from this limited meaning, the Court\u2019s cases havelicensed federal regulatory schemes that would have been\u201cunthinkable\u201d to the Constitution\u2019s Framers and ratifiers. Raich, 545 U. S., at 59 (opinion of THOMAS, J.).
Perhaps nowhere is this deviation more evident than infederal environmental law, much of which is uniquely dependent upon an expansive interpretation of the CommerceClause. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 281\u2013283 (1981); see also Brief for Claremont Institute\u2019s Center for Constitutional Jurisprudence as Amicus Curiae 17\u201325. And many environmental regulatory schemes seem to push even the limits of theCourt\u2019s New Deal era Commerce Clause precedents, see Hodel, 452 U. S., at 309\u2013313 (Rehnquist, J., concurring injudgment), to say nothing of the Court\u2019s more recent precedents reining in the commerce power. See, e.g., SWANCC, 531 U. S., at 173\u2013174; cf. Rancho Viejo, LLC v. Norton, 334
F. 3d 1158, 1160 (CADC 2003) (Roberts, J., dissenting fromdenial of rehearing en banc) (\u201cThe panel\u2019s approach in thiscase leads to the result that regulating the taking [underthe Endangered Species Act] of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating \u2018Commerce among the several States\u2019\u201d (ellipsis omitted)).
\u2014\u2014\u2014\u2014\u2014\u2014
10Further scholarship notes that the term \u201ccommerce\u201d as originally understood \u201cwas bound tightly with the Lex Mercatoria and the sort of activities engaged in by merchants: buying and selling products made byothers (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines.\u201d R. Natelson, The Legal Meaning of \u201cCommerce\u201d in the Commerce Clause, 80 St. John\u2019s L. Rev. 789, 845 (2006). This \u201cdid not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor did it include activities that merely \u2018substantially affected\u2019 commerce; on the contrary, the cases included wording explicitly distinguishing such activities from commerce.\u201d Ibid.
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The Court\u2019s opinion today curbs a serious expansion of federal authority that has simultaneously degraded States\u2019 authority and diverted the Federal Government from itsimportant role as guarantor of the Nation\u2019s great commercial water highways into something resembling \u201ca local zoning board.\u201d Rapanos, 547 U. S., at 738 (plurality opinion).But, wetlands are just the beginning of the problems raised by the agencies\u2019 assertion of jurisdiction in this case. Despite our clear guidance in SWANCC that the CWA extends only to the limits of Congress\u2019 traditional jurisdiction over navigable waters, the EPA and the Corps have continued to treat the statute as if it were based on New Deal era conceptions of Congress\u2019 commerce power. But, while not all environmental statutes are so textually limited, Congresschose to tether federal jurisdiction under the CWA to itstraditional authority over navigable waters. The EPA and the Corps must respect that decision.
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SUPREME COURT OF THE UNITED STATES
No. 21\u2013454
MICHAEL SACKETT, ET UX., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 25, 2023]
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, concurring in the judgment.
Like JUSTICE KAVANAUGH, \u201cI would stick to the text.\u201d Post, at 14 (opinion concurring in judgment). As he explainsin the principal concurrence, our normal method of construing statutes identifies which wetlands the Clean Water Act covers\u2014and the answer provided exceeds what the Court says today. Because the Act covers \u201cthe waters of the United States,\u201d and those waters \u201cinclud[e]\u201d all wetlands\u201cadjacent\u201d to other covered waters, the Act extends to those \u201cadjacent\u201d wetlands. 33 U. S. C. \u00a7\u00a71362(7), 1344(g)(1). And in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. See post, at 4\u20135 (quoting multiple dictionaries). So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two. As applied here, that means\u2014as the EPA and Army Corps have recognized for almost half a century\u2014that a wetland comes within theAct if (i) it is \u201ccontiguous to or bordering a covered water, or
(ii) if [it] is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.\u201d Post, at 14 (emphasis in original). In excluding allthe wetlands in category (ii), the majority\u2019s \u201c\u2018continuoussurface connection\u2019 test disregards the ordinary meaning of
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\u2018adjacent.\u2019\u201d Post, at 9. The majority thus alters\u2014more precisely, narrows the scope of\u2014the statute Congress drafted.
And make no mistake: Congress wrote the statute it meant to. The Clean Water Act was a landmark piece of environmental legislation, designed to address a problem of\u201ccrisis proportions.\u201d R. Adler, J. Landman, & D. Cameron, The Clean Water Act: 20 Years Later 5 (1993). How bad was water pollution in 1972, when the Act passed? Just a few years earlier, Ohio\u2019s Cuyahoga River had \u201cburst intoflames, fueled by oil and other industrial wastes.\u201d Ibid. And that was merely one of many alarms. Rivers, lakes, and creeks across the country were unfit for swimming.Drinking water was full of hazardous chemicals. Fish were dying in record numbers (over 40 million in 1969); and those caught were often too contaminated to eat (with mercury and DDT far above safe levels). See id., at 5\u20136. So Congress embarked on what this Court once understood as a \u201ctotal restructuring and complete rewriting\u201d of existing water pollution law. Milwaukee v. Illinois, 451 U. S. 304, 317 (1981) (internal quotation marks omitted). The new Act established \u201ca self-consciously comprehensive\u201d and \u201callencompassing program of water pollution regulation.\u201d Id., at 318\u2013319. Or said a bit differently, the Act created a program broad enough to achieve the codified objective of \u201crestor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation\u2019s waters.\u201d \u00a71251(a). If you\u2019velately swum in a lake, happily drunk a glass of water straight from the tap, or sat down to a good fish dinner, youcan appreciate what the law has accomplished.
Vital to the Clean Water Act\u2019s project is the protection ofwetlands\u2014both those contiguous to covered waters and others nearby. As this Court (again, formerly) recognized, wetlands \u201cserve to filter and purify water draining into adjacent bodies of water, and to slow the flow of surface runoff into lakes, rivers, and streams.\u201d United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134 (1985) (citation
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omitted). Wetlands thus \u201cfunction as integral parts of the aquatic environment\u201d\u2014protecting neighboring water ifthemselves healthy, imperiling neighboring water if instead degraded. Id., at 135. At the same time, wetlands play a crucial part in flood control (if anything, more needed now than when the statute was enacted). And wetlands perform those functions, as JUSTICE KAVANAUGH explains,not only when they are touching a covered water but alsowhen they are separated from it by a natural or artificial barrier\u2014say, a berm or dune or dike or levee. See post, at 12\u201313 (giving examples). Those barriers, as he says, \u201cdo not block all water flow,\u201d and in fact are usually evidence of a significant connection between the wetland and the water. Ibid. Small wonder, then, that the Act\u2014as written, rather than as read today\u2014covers wetlands with that kind of connection. Congress chose just the word needed to meet theAct\u2019s objective. A wetland is protected when it is \u201cadjacent\u201d to a covered water\u2014not merely when it is \u201cadjoining\u201d or \u201ccontiguous\u201d or \u201ctouching,\u201d or (in the majority\u2019s favoritemade-up locution) has a \u201ccontinuous surface connection.\u201dSee, e.g., ante, at 27.
Today\u2019s majority, though, believes Congress went too far.In the majority\u2019s view, the Act imposes unjustifiably \u201ccrushing consequences\u201d for violations of its terms. Ante, at 3. And many of those violations, it thinks, are of no real concern, arising from \u201cmundane\u201d land-use conduct \u201clike moving dirt.\u201d Ante, at 13. Congress, the majority scolds, has unleashed the EPA to regulate \u201cswimming pools[] and puddles,\u201d wreaking untold havoc on \u201ca staggering array of landowners.\u201d Ante, at 1, 13. Surely something has to be done;and who else to do it but this Court? It must rescue property owners from Congress\u2019s too-ambitious program of pollution control.
So the majority shelves the usual rules of interpretation\u2014reading the text, determining what the words used there mean, and applying that ordinary understanding
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even if it conflicts with judges\u2019 policy preferences. The majority\u2019s first pass through the statute is, as JUSTICE KAVANAUGH says, \u201cunorthodox.\u201d Post, at 9. \u201cA minus B, which includes C\u201d? Ante, at 19. The majority could use every letter of the alphabet, and graduate to quadratic equations, and still not solve its essential problem. As the majority concedes, the statute \u201ctells us that at least some wetlands must qualify as \u2018waters of the United States.\u2019\u201d Ante, at 18\u201319. More, the statute tells us what those \u201csome wetlands\u201d are: the \u201cadjacent\u201d ones. And again, as JUSTICE KAVANAUGH shows, \u201cadjacent\u201d does not mean adjoining. See post, at 4\u20136; supra, at 1\u20132. So the majority proceeds toits back-up plan. It relies as well on a judicially manufactured clear-statement rule. When Congress (so says themajority) exercises power \u201cover private property\u201d\u2014particularly, over \u201cland and water use\u201d\u2014it must adopt \u201cexceedingly clear language.\u201d Ante, at 23 (internal quotation marks omitted). There is, in other words, a thumb on the scale for property owners\u2014no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting. See supra, at 2.
Even assuming that thumb\u2019s existence, the majority still would be wrong. As JUSTICE KAVANAUGH notes, clear-statement rules operate (when they operate) to resolveproblems of ambiguity and vagueness. See post, at 11; see also Bond v. United States, 572 U. S. 844, 859 (2014); United States v. Bass, 404 U. S. 336, 347 (1971). And no such problems are evident here. One last time: \u201cAdjacent\u201d means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be\u2014which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majorityconcludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to \u201ccorrect\u201d breadth. Those paying attention have seen this move
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before\u2014actually, just last Term. In another case of environmental regulation (involving clean air), the Court invoked another clear-statement rule (the so-called majorquestions doctrine) to diminish another plainly expansive term (\u201csystem of emission reduction\u201d). See West Virginia v. EPA, 597 U. S. ___, ___, ___ (2022) (slip op., at 2, 19). \u201c[C]ontra the majority,\u201d I said then, \u201ca broad term is not the same thing as a \u2018vague\u2019 one.\u201d Id., at ___ (dissenting opinion) (slip op., at 8). And a court must treat the two differently.A court may, on occasion, apply a clear-statement rule todeal with statutory vagueness or ambiguity. But a court may not rewrite Congress\u2019s plain instructions because they go further than preferred. That is what the majority doestoday in finding that the Clean Water Act excludes many wetlands (clearly) \u201cadjacent\u201d to covered waters.
And still more fundamentally, why ever have a thumb on the scale against the Clean Water Act\u2019s protections? The majority first invokes federalism. See ante, at 23\u201324. But as JUSTICE KAVANAUGH observes, \u201cthe Federal Government has long regulated the waters of the United States, including adjacent wetlands.\u201d Post, at 11. The majoritynext raises the specter of criminal penalties for \u201cindeterminate\u201d conduct. See ante, at 24\u201325. But there is no peculiar indeterminacy in saying\u2014as regulators have said for nearlya half century\u2014that a wetland is covered both when it touches a covered water and when it is separated by only adike, berm, dune, or similar barrier. (That standard is in fact more definite than a host of criminal laws I could name.) Today\u2019s pop-up clear-statement rule is explicable only as a reflexive response to Congress\u2019s enactment of anambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate. See ante, at 23 (complaining about Congress\u2019sprotection of \u201cvast\u201d and \u201cstaggering\u201d \u201cadditional area\u201d). And that, too, recalls last Term, when I remarked on special canons \u201cmagically appearing as get-out-of-text-free cards\u201d
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to stop the EPA from taking the measures Congress told it to. See West Virginia, 597 U. S., at ___\u2013___ (dissenting opinion) (slip op., at 28\u201329). There, the majority\u2019s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way.Here, that method prevents the EPA from keeping our country\u2019s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the Court\u2019s appointment of itself as the national decision-maker on environmental policy.
So I\u2019ll conclude, sadly, by repeating what I wrote lastyear, with the replacement of only a single word. \u201c[T]heCourt substitutes its own ideas about policymaking for Congress\u2019s. The Court will not allow the Clean [Water] Act towork as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.\u201d Id., at ___ (slip op., at 32). Because that is not how I think our Government should work\u2014more, because it is not how the Constitution thinks our Government should work\u2014I respectfully concur in the judgment only.
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SUPREME COURT OF THE UNITED STATES
No. 21\u2013454
MICHAEL SACKETT, ET UX., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 25, 2023]
JUSTICE KAVANAUGH, with whom JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON join, concurring in the judgment.
The Clean Water Act generally prohibits dumpingdredged or fill material without a permit into the \u201cwaters of the United States.\u201d 33 U. S. C. \u00a7\u00a71311(a), 1344(a), 1362. The \u201cwaters of the United States\u201d include wetlands that are \u201cadjacent\u201d to waters covered by the Act\u2014for example, wetlands that are adjacent to covered rivers or lakes. \u00a7\u00a71344(g), 1362(7). The question in this case is whether thewetlands on the Sacketts\u2019 residential property are adjacentto covered waters and therefore covered under the Act.
The Ninth Circuit held that the wetlands on the Sacketts\u2019 property are covered by the Clean Water Act because, asrelevant here, the wetlands have a \u201csignificant nexus\u201d tocovered waters nearby. 8 F. 4th 1075, 1093 (2021). The Court today reverses the Ninth Circuit\u2019s judgment.
I agree with the Court\u2019s reversal of the Ninth Circuit. In particular, I agree with the Court\u2019s decision not to adopt the \u201csignificant nexus\u201d test for determining whether a wetland is covered under the Act. And I agree with the Court\u2019s bottom-line judgment that the wetlands on the Sacketts\u2019
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property are not covered by the Act and are therefore not subject to permitting requirements.
I write separately because I respectfully disagree withthe Court\u2019s new test for assessing when wetlands are covered by the Clean Water Act. The Court concludes that wetlands are covered by the Act only when the wetlands have a \u201ccontinuous surface connection\u201d to waters of the United States\u2014that is, when the wetlands are \u201cadjoining\u201d covered waters. Ante, at 20, 22 (internal quotation marksomitted). In my view, the Court\u2019s \u201ccontinuous surface connection\u201d test departs from the statutory text, from 45years of consistent agency practice, and from this Court\u2019s precedents. The Court\u2019s test narrows the Clean Water Act\u2019s coverage of \u201cadjacent\u201d wetlands to mean only \u201cadjoining\u201d wetlands. But \u201cadjacent\u201d and \u201cadjoining\u201d have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering acovered water, and (ii) wetlands separated from a coveredwater only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act\u2019s coverage of wetlands to only adjoining wetlands, the Court\u2019snew test will leave some long-regulated adjacent wetlandsno longer covered by the Clean Water Act, with significantrepercussions for water quality and flood control throughout the United States. Therefore, I respectfully concur only in the Court\u2019s judgment.
I The Clean Water Act generally prohibits dumping a \u201cpollutant\u201d\u2014including dredged or fill material\u2014into \u201cnavigable waters\u201d without a permit. 33 U. S. C. \u00a7\u00a71311(a), 1344(a), 1362. The Act defines \u201cnavigable waters\u201d as \u201cthewaters of the United States, including the territorial seas.\u201d\u00a71362(7).As the Court today ultimately agrees, see ante, at 19, and
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the Sacketts acknowledge, see Tr. of Oral Arg. 7\u20138, 33\u201334, 56\u201357, the statutory term \u201cwaters of the United States\u201d covers wetlands \u201cadjacent\u201d to waters of the United States\u2014for example, wetlands adjacent to a river or lake that is itself a water of the United States. 33 U. S. C. \u00a71344(g).
As enacted in 1972, the Clean Water Act protected \u201cthewaters of the United States.\u201d \u00a7\u00a71311(a), 1362(7), 1362(12).In 1975, the Army Corps interpreted \u201cwaters of the United States\u201d to include wetlands \u201cadjacent to other navigablewaters.\u201d 40 Fed. Reg. 31324. In 1977, Congress expressly adopted that same understanding of the Act, amending the Act to make clear that only the Federal Government, andnot the States, may issue Clean Water Act permits for dumping dredged or fill material into certain \u201cwaters of theUnited States,\u201d \u201cincluding wetlands adjacent\u201d to those covered waters. Clean Water Act, 91 Stat. 1601; 33 U. S. C. \u00a71344(g). In that 1977 Act, Congress thus expresslyrecognized \u201cadjacent wetlands\u201d as \u201cwaters of the United States.\u201d
Interpreting the text of the Act as amended in 1977, this Court has long held that the Act covers \u201cadjacent\u201d wetlands.See United States v. Riverside Bayview Homes, Inc., 474
U. S. 121, 134\u2013135, 138 (1985) (\u201cCongress expressly stated that the term \u2018waters\u2019 included adjacent wetlands.\u201d); see also Rapanos v. United States, 547 U. S. 715, 742 (2006) (plurality opinion) (wetlands that \u201care \u2018adjacent to\u2019\u201d watersof the United States are \u201ccovered by the Act\u201d); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167, 172 (2001) (recognizing \u201cCongress\u2019 unequivocal\u201d \u201capproval of, the Corps\u2019 regulationsinterpreting the [Act] to cover wetlands adjacent tonavigable waters\u201d). The Court has also ruled that the Act\u2019s coverage of adjacent wetlands does not extend to \u201cisolated\u201d wetlands. Id., at 168\u2013172.
So the question here becomes the meaning of \u201cadjacent\u201d wetlands under the Clean Water Act. As a matter of
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ordinary meaning and longstanding agency practice, awetland is \u201cadjacent\u201d to a covered water (i) if the wetland isadjoining\u2014that is, contiguous to or bordering\u2014a covered water\u2014or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.
The Court and I agree that wetlands in the first category\u2014that is, wetlands adjoining a covered water\u2014are covered as adjacent wetlands. Ante, at 19\u201322. But the Court and I disagree about the second category\u2014that is,wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. The Court concludes that wetlands in that second category are not covered as adjacent wetlands becausethose wetlands do not have a continuous surface connection to a covered water\u2014in other words, those wetlands are not adjoining the covered water. I disagree because thestatutory text (\u201cadjacent\u201d) does not require a continuous surface connection between those wetlands and covered waters.
The ordinary meaning of the term \u201cadjacent\u201d has not changed since Congress amended the Clean Water Act in1977 to expressly cover \u201cwetlands adjacent\u201d to waters of the United States. 91 Stat. 1601; 33 U. S. C. \u00a71344(g). Then as now, \u201cadjacent\u201d means lying near or close to, neighboring,or not widely separated. Indeed, the definitions of \u201cadjacent\u201d are notably explicit that two things need not touch each other in order to be adjacent. \u201cAdjacent\u201d includes \u201cadjoining\u201d but is not limited to \u201cadjoining.\u201d See, e.g., Black\u2019s Law Dictionary 62 (rev. 4th ed. 1968) (defining \u201cadjacent\u201d as \u201cLying near or close to; sometimes, contiguous; neighboring; . . . may not actually touch\u201d); Black\u2019s Law Dictionary 50 (11th ed. 2019) (defining \u201cadjacent\u201d as \u201cLying near or close to, but not necessarily touching\u201d); see also, e.g., Webster\u2019s Third New International Dictionary 26 (1976) (defining \u201cadjacent\u201d as
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\u201cto lie near, border on\u201d; \u201cnot distant or far off \u201d; \u201cnearby but not touching\u201d).
By contrast to the Clean Water Act\u2019s express inclusion of \u201cadjacent\u201d wetlands, other provisions of the Act use the narrower term \u201cadjoining.\u201d Compare 33 U. S. C. \u00a71344(g) with \u00a7\u00a71321(b)\u2013(c) (\u201cadjoining shorelines\u201d and \u201cadjoining shorelines to the navigable waters\u201d); \u00a71346(c) (\u201cland adjoining the coastal recreation waters\u201d); see also \u00a71254(n)(4) (\u201cestuary\u201d includes certain bodies of water\u201chaving unimpaired natural connection with open sea\u201d);\u00a72802(5) (\u201c\u2018coastal waters\u2019\u201d includes wetlands \u201chavingunimpaired connection with the open sea up to the head of tidal influence\u201d). The difference in those two terms is critical to this case. Two objects are \u201cadjoining\u201d if they \u201care so joined or united to each other that no third object intervenes.\u201d 1968 Black\u2019s 62 (comparing \u201cadjacent\u201d with\u201cadjoining\u201d); see ibid. (\u201cAdjoining\u201d means \u201ctouching orcontiguous, as distinguished from lying near to or adjacent\u201d); see also Black\u2019s Law Dictionary 38\u201339 (5th ed.1979) (same); Webster\u2019s Third 26\u201327 (similar). As applied to wetlands, a marsh is adjacent to a river even if separatedby a levee, just as your neighbor\u2019s house is adjacent to yourhouse even if separated by a fence or an alley.
In other contexts, this Court has recognized the important difference in the meaning of the terms \u201cadjacent\u201dand \u201cadjoining\u201d and has held that \u201cadjacent\u201d is broader than \u201cadjoining or actually contiguous.\u201d United States v. St. Anthony R. Co., 192 U. S. 524, 533 (1904). As an example, the St. Anthony case concerned a federal statute granting railroads the right to cut timber from \u201cpublic lands adjacent\u201d to a railroad right of way. Id., at 526, n. 1, 530. The Court held that timber could be taken from \u201cadjacent\u201d sections of land that were not \u201ccontiguous to or actuallytouching\u201d the right of way. Id., at 538. The Court explainedthat if \u201cthe word \u2018adjoining\u2019 had been used instead of \u2018adjacent,\u2019\u201d a railroad could not have taken the relevant
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timber. Ibid.
In short, the term \u201cadjacent\u201d is broader than \u201cadjoining\u201dand does not require that two objects actually touch. We must presume that Congress used the term \u201cadjacent\u201d wetlands in 1977 to convey a different meaning than\u201cadjoining\u201d wetlands. See Russello v. United States, 464 U. S. 16, 23 (1983).
II Longstanding agency practice reinforces the ordinarymeaning of adjacency and demonstrates, contrary to the Court\u2019s conclusion today, that the term \u201cadjacent\u201d is broader than \u201cadjoining.\u201dAfter the Act was passed in 1972, a key question quickly arose: Did \u201cwaters of the United States\u201d include wetlands? By 1975, the Army Corps concluded that the term \u201cwaters of the United States\u201d included \u201cadjacent\u201d wetlands. 40 Fed. Reg. 31324. In 1977, Congress itself made clear that\u201cadjacent\u201d wetlands were covered by the Act by amending the Act and enacting \u00a71344(g). 91 Stat. 1601. Since 1977, when Congress explicitly included \u201cadjacent\u201d wetlands within the Act\u2019s coverage, the Army Corps hasadopted a variety of interpretations of its authority over those wetlands\u2014some more expansive and others less expansive. But throughout those 45 years and across alleight Presidential administrations, the Army Corps has always included in the definition of \u201cadjacent wetlands\u201d notonly wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a man-made dike or barrier, natural river berm, beach dune, or the like.
\uf0b7 In 1977 and 1980, under President Carter, the ArmyCorps and EPA defined \u201cadjacent\u201d wetlands as including wetlands \u201cseparated from other waters of theUnited States by man-made dikes or barriers, natural river berms, beach dunes and the like.\u201d 42 Fed. Reg.
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37144; see 45 Fed. Reg. 85345.
\uf0b7
In 1986, under President Reagan, the Army Corpsadopted a new regulatory provision defining \u201cwaters of the United States\u201d and reaffirmed that \u201cadjacent\u201dwetlands include wetlands \u201cseparated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.\u201d 51 Fed. Reg. 41210, 41251.
\uf0b7
From 1986 until 2015, under Presidents Reagan,George H. W. Bush, Clinton, George W. Bush, and Obama, the regulations continued to cover wetlands \u201cseparated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.\u201d See 33 CFR \u00a7328.3(c)(1991); 40 CFR \u00a7230.3(b) (1991); 33 CFR \u00a7328.3(c) (1998); 40 CFR \u00a7230.3(b) (1998); 33 CFR \u00a7328.3(c) (2005); 40 CFR \u00a7230.3(b) (2005); 33 CFR \u00a7328.3(c) (2010); 40 CFR \u00a7230.3(b) (2010).
\uf0b7
In 2015, under President Obama, the Army Corps and EPA promulgated a new rule, which again specified that \u201cadjacent\u201d wetlands include wetlands \u201cseparatedby constructed dikes or barriers, natural river berms,beach dunes, and the like.\u201d 80 Fed. Reg. 37105, 37116.
\uf0b7
In 2019 and 2020, under President Trump, the ArmyCorps and EPA repealed the 2015 rule and issued anew rule. But even following the repeal and new rule, adjacent wetlands included wetlands that are \u201cphysically separated\u201d from certain covered waters \u201conly by a natural berm, bank, dune, or similar naturalfeature\u201d or \u201conly by an artificial dike, barrier, or similarartificial structure so long as that structure allows for a direct hydrologic surface connection . . . in a typical year, such as through a culvert, flood or tide gate,pump, or similar artificial feature.\u201d 85 Fed. Reg. 22338, 22340 (2020).
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\uf0b7 In 2023, under President Biden, the Army Corps and EPA once again issued a new rule that defined \u201cadjacent\u201d wetlands to include wetlands \u201cseparated from other waters of the United States by man-madedikes or barriers, natural river berms, beach dunes, and the like.\u201d 88 Fed. Reg. 3143\u20133144.
That longstanding and consistent agency interpretationreflects and reinforces the ordinary meaning of the statute.The eight administrations since 1977 have maintained dramatically different views of how to regulate theenvironment, including under the Clean Water Act. Some of those administrations promulgated very broad interpretations of adjacent wetlands. Others adopted far narrower interpretations. Yet all of those eight different administrations have recognized as a matter of law that theClean Water Act\u2019s coverage of adjacent wetlands means more than adjoining wetlands and also includes wetlands separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like. That consistency in interpretation is strong confirmation of the ordinary meaning of adjacent wetlands.
III The Act covers \u201cadjacent\u201d wetlands. And adjacent wetlands is a broader category than adjoining wetlands.But instead of adhering to the ordinary meaning of\u201cadjacent\u201d wetlands, to the 45 years of consistent agency practice, and to this Court\u2019s precedents, the Court todayadopts a test under which a wetland is covered only if thewetland has a \u201ccontinuous surface connection\u201d to a covered water\u2014in other words, if it adjoins a covered water. Ante, at 22 (internal quotation marks omitted). The Court saysthat the wetland and the covered water must be \u201cindistinguishable\u201d from one another\u2014in other words, there must be no \u201cclear demarcation\u201d between wetlands and covered waters. Ante, at 21 (internal quotation marks
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omitted).
The Court\u2019s \u201ccontinuous surface connection\u201d test disregards the ordinary meaning of \u201cadjacent.\u201d The Court\u2019s mistake is straightforward: The Court essentially reads\u201cadjacent\u201d to mean \u201cadjoining.\u201d As a result, the Court excludes wetlands that the text of the Clean Water Act covers\u2014and that the Act since 1977 has always been interpreted to cover.
In support of its narrower \u201ccontinuous surface connection\u201d interpretation of covered wetlands, the Court emphasizes that the 1972 Act\u2019s overarching statutory termis \u201cwaters of the United States.\u201d Ante, at 19. And the Court suggests that the term \u201cwaters of the United States\u201d cannot be interpreted to cover \u201cadjacent wetlands\u201d but only\u201cadjoining wetlands.\u201d See ante, at 19\u201322. But in 1977, Congress itself expressly made clear that the \u201cwaters of theUnited States\u201d include \u201cadjacent\u201d wetlands. 91 Stat. 1601. And Congress would not have used the word \u201cadjacent\u201d in1977 if Congress actually meant \u201cadjoining,\u201d particularly because Congress used the word \u201cadjoining\u201d in severalother places in the Clean Water Act. 33 U. S. C. \u00a7\u00a71321(b)\u2013(c), 1346(c); see also \u00a7\u00a71254(n)(4), 2802(5).
To bolster its unorthodox statutory interpretation, theCourt resorts to a formula: \u201cA minus B, which includes C.\u201d Ante, at 19. That just seems to be a fancier way of arguing (against all indications of ordinary meaning) that \u201cadjacent\u201d means \u201cadjoining.\u201d But again the Court isimposing a restriction nowhere to be found in the text. In the end, the Court has no good answer for why Congress used the term \u201cadjacent\u201d instead of \u201cadjoining\u201d whenCongress enacted \u00a71344(g) in 1977.1
\u2014\u2014\u2014\u2014\u2014\u2014
1Perhaps recognizing the difficulty of reading the Act to mean \u201cadjoining\u201d when it actually says \u201cadjacent,\u201d the Court at one point suggests that \u201cadjoining\u201d is equivalent to \u201cadjacent.\u201d Ante, at 19\u201320. As a matter of ordinary meaning, as explained at length above, that is incorrect. Adjoining wetlands are a subset of adjacent wetlands, not the
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Recall again how the 1977 Act came about. In 1975, the Army Corps concluded that the 1972 Act\u2019s coverage of\u201cwaters of the United States\u201d included \u201cadjacent\u201d wetlands. 40 Fed. Reg. 31324. Then in 1977, Congress adopted a new permitting program for a category of \u201cwaters of the United States.\u201d Congress allocated to the Federal Government exclusive authority to issue Clean Water Act permits fordumping dredged or fill material into certain \u201cwaters of theUnited States,\u201d \u201cincluding wetlands adjacent thereto.\u201d 91 Stat. 1601. Through that statutory text, Congress madeclear its understanding that \u201cwaters of the United States\u201d included \u201cadjacent\u201d wetlands\u2014and indeed, Congress designed important federal-state permitting authorities around that precise understanding. Congress\u2019s 1977amendment did not \u201cmerely\u201d express \u201can opinion\u201d about the meaning of the Clean Water Act; rather, it reflected whatCongress understood \u201cits own prior acts to mean.\u201d Bell v. New Jersey, 461 U. S. 773, 785, n. 12 (1983) (internalquotation marks omitted).
Moreover, Congress\u2019s 1977 decision was no accident. As this Court has previously recognized, \u201cthe scope of the Corps\u2019 asserted jurisdiction over wetlands\u201d\u2014including the Corps\u2019 decision to cover adjacent wetlands\u2014\u201cwas specifically brought to Congress\u2019 attention\u201d in 1977, \u201cand Congress rejected measures designed to curb the Corps\u2019 jurisdiction.\u201d United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 137 (1985). Subsequently, this Courthas recognized that Congress\u2019s 1977 amendment madeclear that the Act \u201ccover[s] wetlands adjacent to navigablewaters.\u201d Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167 (2001); see Riverside Bayview, 474 U. S., at 138 (\u201cCongress expressly stated that the term \u2018waters\u2019 included adjacent wetlands\u201d).
Not surprisingly, in the years since 1977, no one has
\u2014\u2014\u2014\u2014\u2014\u2014 whole set of adjacent wetlands.
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seriously disputed that the Act covers adjacent wetlands. And in light of the text of the Act, eight consecutivePresidential administrations have recognized that the Act covers adjacent wetlands and that adjacent wetlands include more than simply adjoining wetlands. The Court\u2019s analysis today therefore seems stuck in a bit of a time warp\u2014relitigating an issue that Congress settled in 1977and that this Court has long treated as settled: The Act covers adjacent wetlands. By adopting a test that substitutes \u201cadjoining\u201d for \u201cadjacent,\u201d the Court today errs.
The Court also invokes federalism and vagueness concerns. The Court suggests that ambiguities or vagueness in federal statutes regulating private property should be construed in favor of the property owner,particularly given that States have traditionally regulatedprivate property rights. See ante, at 23\u201325; see also Solid Waste Agency of Northern Cook Cty., 531 U. S., at 173\u2013174. To begin with, the Federal Government has long regulated the waters of the United States, including adjacentwetlands.
In any event, the decisive point here is that the term\u201cadjacent\u201d in this statute is unambiguously broader than the term \u201cadjoining.\u201d On that critical interpretive question, there is no ambiguity. We should not create ambiguitywhere none exists. And we may not rewrite \u201cadjacent\u201d to mean the same thing as \u201cadjoining,\u201d as the Court does today.
Finally, contrary to the Court\u2019s suggestion otherwise, the analysis in this separate opinion centers on the \u201coperative\u201d text, \u201cwaters of the United States.\u201d Ante, at 27. To recap:The 1972 Act covered \u201cwaters of the United States.\u201d In 1977, when Congress allocated permitting authority,Congress expressly included \u201cadjacent\u201d wetlands within the\u201cwaters of the United States.\u201d Since then, the Executive Branch and this Court have recognized that \u201cwaters of the United States\u201d covers \u201cadjacent\u201d wetlands. Based on the
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text of the statute, as well as 45 years of consistent agency practice and this Court\u2019s precedents, I respectfully disagree with the Court\u2019s decision to interpret \u201cwaters of the UnitedStates\u201d to include only adjoining wetlands and not adjacentwetlands.
IV The difference between \u201cadjacent\u201d and \u201cadjoining\u201d in this context is not merely semantic or academic. The Court\u2019s rewriting of \u201cadjacent\u201d to mean \u201cadjoining\u201d will matter a great deal in the real world. In particular, the Court\u2019s newand overly narrow test may leave long-regulated and longaccepted-to-be-regulable wetlands suddenly beyond thescope of the agencies\u2019 regulatory authority, with negative consequences for waters of the United States. For example,the Mississippi River features an extensive levee system toprevent flooding. Under the Court\u2019s \u201ccontinuous surface connection\u201d test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project. See Brief for Respondents 30. Likewise, federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) thebay and its covered tributaries. See id., at 35. Those are just two of many examples of how the Court\u2019s overly narrow view of the Clean Water Act will have concrete impact. As those examples reveal, there is a good reason whyCongress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters. Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland. 85 Fed. Reg.
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22307; 88 Fed. Reg. 3095, 3118. Similarly, artificialbarriers such as dikes and levees typically do not block all water flow, 85 Fed. Reg. 22312; 88 Fed. Reg. 3076, and those artificial structures were often built to control the surface water connection between the wetland and the water. 85 Fed. Reg. 22315; 88 Fed. Reg. 3118. The scientific evidence overwhelmingly demonstrates that wetlands separated from covered waters by those kinds ofberms or barriers, for example, still play an important rolein protecting neighboring and downstream waters, including by filtering pollutants, storing water, andproviding flood control. See 88 Fed. Reg. 3118; 33 CFR \u00a7320.4(b)(2) (2022); see also United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134 (1985). In short, those adjacent wetlands may affect downstream waterquality and flood control in many of the same ways thatadjoining wetlands can.
The Court\u2019s erroneous test not only will create real-worldconsequences for the waters of the United States, but alsois sufficiently novel and vague (at least as a single standalone test) that it may create regulatory uncertaintyfor the Federal Government, the States, and regulated parties. As the Federal Government suggests, thecontinuous surface connection test raises \u201ca host of thornyquestions\u201d and will lead to \u201cpotentially arbitrary results.\u201d Brief for Respondents 29. For example, how difficult doesit have to be to discern the boundary between a water and a wetland for the wetland to be covered by the Clean WaterAct? How does that test apply to the many kinds ofwetlands that typically do not have a surface water connection to a covered water year-round\u2014for example,wetlands and waters that are connected for much of the year but not in the summer when they dry up to someextent? How \u201ctemporary\u201d do \u201cinterruptions in surface connection\u201d have to be for wetlands to still be covered? Ante, at 21. How does the test operate in areas where
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storms, floods, and erosion frequently shift or breachnatural river berms? Can a continuous surface connection be established by a ditch, swale, pipe, or culvert? See 88 Fed. Reg. 3095. The Court covers wetlands separated froma water by an artificial barrier constructed illegally, see ante, at 21\u201322, n. 16, but why not also include barriers authorized by the Army Corps at a time when it would not have known that the barrier would cut off federal authority? The list goes on.
Put simply, the Court\u2019s atextual test\u2014rewriting \u201cadjacent\u201d to mean \u201cadjoining\u201d\u2014will produce real-world consequences for the waters of the United States and will generate regulatory uncertainty. I would stick to the text. There can be no debate, in my respectful view, that the keystatutory term is \u201cadjacent\u201d and that adjacent wetlands isa broader category than adjoining wetlands. To be faithful to the statutory text, we cannot interpret \u201cadjacent\u201dwetlands to be the same thing as \u201cadjoining\u201d wetlands.
* * * In sum, I agree with the Court\u2019s decision not to adopt the\u201csignificant nexus\u201d test for adjacent wetlands. I respectfully disagree, however, with the Court\u2019s new \u201ccontinuous surface connection\u201d test. In my view, the Court\u2019s new test is overly narrow and inconsistent with the Act\u2019s coverage of adjacent wetlands. The Act covers adjacent wetlands, and a wetland is \u201cadjacent\u201d to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, naturalriver berm, beach dune, or the like. The wetlands on the Sacketts\u2019 property do not fall into either of those categoriesand therefore are not covered under the Act as I would interpret it. Therefore, like the Court, I would reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit and remand for further proceedings. But I respectfully
15
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