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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–454

															_________________

															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’s rivers,
lakes, and streams were severely polluted, and existing federal
legislation had proved to be inadequate. Today, many formerly fetid
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’s geographical
reach have been uncertain from the start. The Act applies to “the
waters of the United States,” 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 “mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, [or] playa
lakes?”[ 2 ] How about ditches,
swimming pools, and puddles?

															For more than a half century, the agencies
responsible for enforcing the Act have wrestled with the problem
and adopted varying interpretations. On three prior occasions, this
Court has tried to clarify the meaning of “the waters of the United
States.” 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 what the
Act means by “the waters of the United States.”

															I

															A

															For most of this Nation’s history, the
regulation of water pollution was left almost entirely to the
States and their subdivisions. The common law permitted aggrieved
parties to 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
“traditional navigable waters”—that is, interstate waters that were
either navigable in fact and used in commerce or readily
susceptible of being used in this way—remained free of impediments.
See, e.g. , Rivers and Harbors Act of 1899, 30Stat. 1151; see
also United States v. Appalachian Elec. Power Co. , 311 U.S.
377 , 406–407 (1940); The Daniel Ball , 10 Wall. 557, 563
(1871).

															Congress’s 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
hurdles, such as requiring the consent of the State where the
pollution originated. See 62Stat. 1156–1157. Despite repeated
amendments over the next two decades, few actions were brought
under this framework.[ 5 ]

															Congress eventually replaced this scheme in 1972
with the CWA. See 86Stat. 816. The Act prohibits “the discharge of
any pollutant” into “navigable waters.” 33 U. S. C.
§§1311(a), 1362(12)(A). It broadly defines the term
“ ‘pollutant’ ” to include not only contaminants like
“chemical wastes,” but also more mundane materials like “rock,
sand,” and “cellar dirt.” §1362(6).

															The CWA is a potent weapon. It imposes what have
been described as “crushing” consequences “even for inadvertent
violations.” Army Corps of Engineers v. Hawkes Co. ,
578 U.S. 590, 602 (2016) (Kennedy, J., concurring). Property owners
who negligently discharge “pollutants” into covered waters may face
severe criminal penalties including imprisonment. §1319(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. §2461; 33
U. S. C. §1319(d); 88 Fed. Reg. 989 (2023) (to be
codified in 40 CFR §19.4). And due to the Act’s 5-year statute of
limitations, 28 U. S. C. §2462, and expansive
interpretations of the term “violation,” 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 (CA9 2001) (upholding Agency decision to
count each of 348 passes of a plow by a farmer through
“jurisdictional” soil on his farm as a separate violation),
aff ’d by an equally divided Court, 537 U.S.
99 (2002) ( per curiam ).

															The Environmental Protection Agency (EPA) and
the 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.
§1319(a). The Act also authorizes private plaintiffs to sue to
enforce its requirements. §1365(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 §1344(a). The costs of obtaining such a permit
are “significant,” and both agencies have admitted that “the
permitting process can be arduous, expensive, and long.” Hawkes
Co. , 578 U. S., at 594–595, 601. Success is also far from
guaranteed, as the Corps has asserted discretion to grant or deny
permits based on a long, nonexclusive list of factors that ends
with a catchall mandate to consider “in general, the needs and
welfare of the people.” 33 CFR §320.4(a)(1) (2022).

															Due to the CWA’s capacious definition of
“pollutant,” its low mens rea , and its severe penalties,
regulated parties have focused particular attention on the Act’s
geographic scope. While its predecessor encompassed “interstate or
navigable waters,” 33 U. S. C. §1160(a) (1970 ed.), the
CWA prohibits the discharge of pollutants into only “navigable
waters,” which it defines as “the waters of the United States,
including the territorial seas,” 33 U. S. C. §§1311(a),
1362(7), (12)(A) (2018 ed.). The meaning of this definition is 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 bumpy
and costly. In 2004, they purchased a small lot near Priest Lake,
in Bonner County, Idaho. In preparation for building a modest home,
they began backfilling their property with 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 “ ‘undertake activities to restore
the Site’ ” pursuant to a “ ‘Restoration Work
Plan’ ” 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 “the waters of
the United States” to include “[a]ll . . . waters” that
“could affect interstate or foreign commerce,” as well as
“[w]etlands adjacent” to those waters. 40 CFR §§230.3(s)(3), (7)
(2008). “[A]djacent” was defined to mean not just “bordering” or
“contiguous,” but also “neighboring.” §230.3(b). Agency guidance
instructed officials to assert jurisdiction over wetlands
“adjacent” to non-navigable tributaries when those wetlands had “a
significant nexus to a traditional navigable water.”[ 6 ] A “significant nexus” was said to exist
when “ ‘wetlands, either alone or in combination with similarly situated lands in the region, significantly
affect the chemical, physical, and biological integrity’ ”
of those waters. 2007 Guidance 8 (emphasis added). In looking for
evidence of a “significant nexus,” field agents were told to
consider a wide range of open-ended hydrological and ecological
factors. See id. , at 7.

															According to the EPA, the “wetlands” on the
Sacketts’ lot are “adjacent to” (in the sense that they are in the
same neighborhood as) what it described as an “unnamed tributary”
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 EPA designated as
traditionally navigable. To establish a significant nexus, the EPA
lumped the Sacketts’ lot together with the Kalispell Bay Fen, a
large nearby wetland complex that the Agency regarded as “similarly
situated.” According to the EPA, these properties, taken together,
“significantly affect” the ecology of Priest Lake. Therefore, the
EPA concluded, the Sacketts had illegally dumped soil and gravel
onto “the waters of the United States.”

															The Sacketts filed suit under the Administrative
Procedure Act, 5 U. S. C. §702 et seq. ,
alleging that the EPA lacked jurisdiction because any wetlands on
their property were not “waters of the United States.” 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 under the APA. See Sackett , 566 U. S., at 131. After seven years of
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’ lot satisfied that standard. 8
F. 4th 1075, 1091–1093 (2021).

															We granted certiorari to decide the proper test
for determining whether wetlands are “waters of the United States.”
595 U. S. ___ (2022).

															II

															A

															In defining the meaning of “the waters of the
United States,” we revisit what has been “a contentious and
difficult task.” National Assn. of Mfrs. v. Department of
Defense , 583 U. S. ___, ___ (2018) (slip op., at 1). The
phrase has sparked decades of agency action and litigation. In
order to resolve the CWA’s applicability to wetlands, we begin by
reviewing this history.

															The EPA and the Corps initially promulgated
different interpretations of “the waters of the United States.” 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 its historical
authority to regulate obstructions to navigation, asserted
jurisdiction over only traditional navigable waters. 39 Fed. Reg.
12119 (1974). But the Corps’ narrow definition did not last. It
soon promulgated new, much broader definitions designed to reach
the outer limits of Congress’s commerce power. See 42 Fed. Reg.
37144, and n. 2 (1977); 40 Fed. Reg. 31324–31325 (1975).

															Eventually the EPA and Corps settled on
materially identical definitions. See 45 Fed. Reg. 33424 (1980); 47
Fed. Reg. 31810–31811 (1982). These broad definitions encompassed
“[a]ll . . . waters” that “could affect interstate or
foreign commerce.” 40 CFR §230.3(s)(3) (2008). So long as the
potential for an interstate effect was present, the regulation
extended the CWA to, for example, “intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or
natural ponds.” Ibid. The agencies likewise took an
expansive view of the CWA’s coverage of wetlands “adjacent” to
covered waters. §230.3(s)(7). As noted, they defined “adjacent” to
mean “bordering, contiguous, or neighboring” and clarified that
“adjacent” wetlands include those that are separated from covered
waters “by man-made dikes or barriers, natural river berms, beach
dunes and the like.” §230.3(b). They also specified that “wetlands”
is a technical term encompassing “those areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal conditions do support,
a prevalence of vegetation typically adapted for life in saturated
soil conditions.” §230.3(t). The Corps released what would become a
143-page manual to guide officers when they determine whether
property meets this definition.[ 7 ]

															This Court first construed the meaning of “the
waters of the United States” in United States v. Riverside Bayview Homes , Inc. , 474 U.S.
121 (1985). There, we were confronted with the Corps’ assertion
of authority under the CWA over wetlands that “actually abut[ted]
on a navigable waterway.” Id. , at 135. Although we expressed
concern that wetlands seemed to fall outside “traditional notions
of ‘waters,’ ” we nonetheless deferred to the Corps, reasoning
that “the transition from water to solid ground is not necessarily
or even typically an abrupt one.” Id. , at 132–133.

															The agencies responded to Riverside
Bayview by expanding their interpretations even further. Most
notably, they issued the “migratory bird rule,” which extended
jurisdiction to any waters or wetlands that “are or would be used
as [a] habitat” by migratory birds or endangered species. See 53
Fed. Reg. 20765 (1988); 51 Fed. Reg. 41217 (1986). As the Corps
would later admit, “nearly all waters were jurisdictional under the
migratory bird rule.”[ 8 ]

															In Solid Waste Agency of Northern Cook
Cty. v. Army Corps of Engineers , 531
U.S. 159 (2001) ( SWANCC ), this Court rejected the
migratory bird rule, which the Corps had used to assert
jurisdiction over several isolated ponds located wholly within the
State of Illinois. Disagreeing with the Corps’ argument that
ecological interests supported its jurisdiction, we instead held
that the CWA does not “exten[d] to ponds that are not adjacent to
open water.” Id. , at 168 (emphasis deleted).

															Days after our decision, the agencies issued
guidance that sought to minimize SWANCC ’s impact. They took
the view that this Court’s holding was “strictly limited to waters
that are ‘nonnavigable, isolated, and intrastate’ ” and that
“field staff should continue to exercise CWA jurisdiction to the
full extent of their authority” for “any waters that fall outside
of that category.”[ 9 ] The
agencies never defined exactly what they regarded as the “full
extent of their authority.” They instead encouraged local field
agents to make decisions on a case-by-case basis.

															What emerged was a system of “vague” rules that
depended on “locally developed practices.” GAO Report 26. Deferring
to the agencies’ localized decisions, lower courts blessed an array
of expansive interpretations of the CWA’s reach. See, e.g. , United States v. Deaton , 332 F.3d 698 , 702 (CA4 2003) (holding that a property owner
violated the CWA by piling soil near a ditch 32 miles from
navigable waters). Within a few years, the agencies had
“interpreted their jurisdiction over ‘the waters of the United
States’ to cover 270-to-300 million acres” of wetlands and
“virtually any parcel of land containing a channel or conduit
. . . through which rainwater or drainage may
occasionally or intermittently flow.” 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 principal case 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’s 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’s coverage did not extend beyond two categories:
first, certain relatively permanent bodies of water connected to
traditional interstate navigable waters and, second, wetlands with
such a close physical connection to those waters that they were “as
a practical matter indistinguishable from waters of the United
States.” Id. , at 742, 755 (emphasis deleted). Four Justices
would have deferred to the Government’s determination that the
wetlands at issue were covered under the CWA. Id. , at 788
(Stevens, J., dissenting). Finally, one Justice concluded that
jurisdiction under the CWA requires a “significant nexus” between
wetlands and navigable waters and that such a nexus exists where
“the wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the chemical,
physical, and biological integrity” of those waters. Id. , at
779–780 (Kennedy, J., concurring in judgment) . In the decade following Rapanos , the EPA
and the Corps issued guidance documents that “recognized larger
grey areas and called for more fact-intensive individualized
determinations in those grey areas.”[ 10 ] As discussed, they instructed agency officials to
assert jurisdiction over wetlands “adjacent” 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
a lengthy list of hydrological and ecological factors. Ibid. Echoing what they had said about the migratory bird rule, the
agencies later admitted that “almost all waters and wetlands across
the country theoretically could be subject to a case-specific
jurisdictional determination” 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 “some 120 miles away”).

															More recently, the agencies have engaged in a
flurry of rulemaking defining “the waters of the United States.” In
a 2015 rule, they offered a muscular approach that would subject
“the vast majority of the nation’s water features” to a
case-by-case jurisdictional analysis.[ 11 ] Although the rule listed a few examples of “waters”
that were excluded from regulation like “[p]uddles” and “swimming
pools,” it categorically covered other waters and wetlands,
including any within 1,500 feet of interstate or traditional
navigable waters. 80 Fed. Reg. 37116–37117. And it subjected a
wider range 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 with
a narrower definition that limited jurisdiction to traditional
navigable waters and their tributaries, lakes, and “adjacent”
wetlands. 85 Fed. Reg. 22340 (2020). They also narrowed the
definition of “[a]djacent,” limiting it to wetlands that “[a]but”
covered waters, are flooded by those waters, or are separated from
those waters by features like berms or barriers. Ibid. This
rule too did not last. After granting the EPA’s 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 §120.2). Under that broader
rule, traditional navigable waters, interstate waters, and the
territorial seas, as well as their tributaries and adjacent
wetlands, are waters of the United States. 88 Fed. Reg. 3143. So
are any “[i]ntrastate lakes and ponds, streams, or wetlands” 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, the rule states that a significant
nexus requires consideration of a list of open-ended factors. 88
Fed. Reg. 3006, 3144. Finally, the rule returns to the broad
pre-2020 definition of “adjacent.” Ibid. ; see supra ,
at 7. Acknowledging that “[f ]ield work is often necessary to
confirm the presence of a wetland” under these definitions, the
rule instructs local agents to continue using the Corps’ Wetlands
Delineation Manual. 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 been and
remains sufficient to establish jurisdiction over “adjacent”
wetlands. And by the EPA’s own admission, “almost all waters and
wetlands” are potentially susceptible to regulation under that
test. 80 Fed. Reg. 37056. This puts many property owners in a
precarious position because it is “often difficult to determine
whether a particular piece of property contains waters of the
United States.” Hawkes Co. , 578 U. S., at 594; see 40
CFR §230.3(t) (2008). Even if a property appears dry, application
of the guidance in a complicated manual ultimately decides whether
it contains wetlands. See 88 Fed. Reg. 3117; Wetlands Delineation
Manual 84–85 (describing “not . . . atypical” examples of
wetlands that periodically lack wetlands indicators); see also Hawkes Co. v. United States Army Corps of Engineers ,
782 F.3d 994, 1003 (CA8 2015) (Kelly, J., concurring) (“This is a
unique aspect of the CWA; most laws do not require the hiring of
expert consultants to determine if they even apply to you or your
property”). And because the CWA can sweep broadly enough to
criminalize mundane activities like moving dirt, this unchecked
definition of “the waters of the United States” 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. 16–01, at 1 (2016)
(RGL 16–01); 33 CFR §§320.1(a)(6), 331.2. But the Corps maintains
that it has no obligation to provide jurisdictional determinations,
RGL 16–01, 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’s
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
receive adverse 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 determination could be
challenged in court, but only after the delay and expense required
to exhaust the administrative appeals process. See 33 CFR
§331.7(d). And once in court, the landowner would face an uphill
battle under the deferential standards of review that the agencies
enjoy. See 5 U. S. C. §706. 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 would
simply choose to build nothing.

															III

															With this history in mind, we now consider the
extent of the CWA’s 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 “navigable waters,” which had
a well-established meaning at the time of the CWA’s enactment. But
the CWA complicates matters by proceeding to define “navigable
waters” as “the waters of the United States,” §1362(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, we conclude that the Rapanos plurality was
correct: the CWA’s use of “waters” encompasses “only those
relatively permanent, standing or continuously flowing bodies of
water ‘forming geographic[al] features’ that are described in
ordinary parlance as ‘streams, oceans, rivers, and lakes.’ ”
547 U. S., at 739 (quoting Webster’s New International
Dictionary 2882 (2d ed. 1954) (Webster’s Second); original
alterations omitted).

															This reading follows from the CWA’s deliberate
use of the plural term “waters.” See 547 U. S., at 732–733.
That term typically refers to bodies of water like those listed
above. See, e.g. , Webster’s Second 2882; Black’s Law
Dictionary 1426 (5th ed. 1979) (“especially 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 the phrases
‘foreign waters,’ ‘ waters of the United States ,’ and the
like” (emphasis added)); Random House Dictionary of the English
Language 2146 (2d ed. 1987) (Random House Dictionary) (defining
“waters” as “a. flowing water, or water moving in waves: The
river’s mighty waters. b. the sea or seas bordering a particular
country or continent or located in a particular part of the world”
(emphasis deleted)). This meaning is hard to reconcile with
classifying “ ‘ “lands,” wet or otherwise, as
“waters.” ’ ” 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
“the waters of the United States” with the term it is defining:
“navigable waters.” See Bond v. United States , 572 U.S.
844 , 861 (2014) (“In settling on a fair reading of a statute,
it is not 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”). Although we have
acknowledged that the CWA extends to more than traditional
navigable waters, we have refused to read “navigable” out of the
statute, holding that it at least shows that Congress was focused
on “its traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made.” SWANCC , 531 U. S., at 172; see also Appalachian
Electric , 311 U. S., at 406–407; The Daniel Ball ,
10 Wall., at 563. At a minimum, then, the use of “navigable”
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
Congress has employed the term “waters” elsewhere in the CWA and in
other laws. The CWA repeatedly uses “waters” in contexts that
confirm the term refers to bodies of open water. See 33
U. S. C. §1267(i)(2)(D) (“the waters of the Chesapeake
Bay”); §1268(a)(3)(I) (“the open waters of each of the Great
Lakes”); §1324(d)(4)(B)(ii) (“lakes and other surface waters”);
§1330(g)(4)(C)(vii) (“estuarine waters”); §1343(c)(1) (“the waters
of the territorial seas, the contiguous zone, and the oceans”);
§§1346(a)(1), 1375a(a) (“coastal recreation waters”); §1370 (state
“boundary waters”). The use of “waters” elsewhere in the U. S.
Code likewise correlates to rivers, lakes, and oceans.[ 13 ]

															Statutory history points in the same direction.
The CWA’s predecessor statute covered “interstate or navigable
waters” and defined “interstate waters” as “all rivers , lakes , and other waters that flow across or form a
part of State boundaries.” 33 U. S. C. §§1160(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.
§403) (prohibiting unauthorized obstructions “to the navigable
capacity of any of the waters of the United States”).

															This Court has understood the CWA’s use of
“waters” in the same way. Even as Riverside Bayview grappled
with whether adjacent wetlands could fall within the CWA’s
coverage, it acknowledged that wetlands are not included in
“traditional notions of ‘waters.’ ” 474 U. S., at 133. It
explained that the term conventionally refers to “hydrographic
features” like “rivers” and “streams.” Id. , at 131. SWANCC went even further, repeatedly describing the “waters”
covered by the Act as “open water” and suggesting that “the waters
of the United States” principally refers to traditional navigable
waters. 531 U. S., at 168–169, 172. That our CWA decisions
operated under this assumption is unsurprising. Ever since Gibbons v. Ogden , 9 Wheat. 1 (1824), this Court has
used “waters of the United States” to refer to similar bodies of
water, almost always in relation to ships. Id. , at 218
(discussing a vessel’s “conduct in the waters of the United
States”).[ 14 ]

															The EPA argues that “waters” is “naturally read
to encompass wetlands” because the “presence of water is
‘universally regarded as the most basic feature of
wetlands.’ ” 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 describe them as “waters.”
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’s reading were correct, see 474
U. S., at 131–135, and n. 8. Finally, it is also
instructive that the CWA expressly “protect[s] the primary
responsibilities and rights of States to prevent, reduce, and
eliminate pollution” and “to plan the development and use
. . . of land and water resources.” §1251(b). It is hard
to see how the States’ role in regulating water resources would
remain “primary” 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 “waters” in
§1362(7) might seem to exclude all wetlands, we do not view that
provision in isolation. The meaning of a word “may only become
evident when placed in context,” FDA v. Brown &
Williamson Tobacco Corp. , 529 U.S.
120 , 132 (2000), and statutory context shows that some wetlands
qualify as “waters of the United States.”

															In 1977, Congress amended the CWA and added
§1344(g)(1), which authorizes States to apply to the EPA for
permission 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) any waters of the United
States, (2) except for traditional navigable waters, (3) “including
wetlands adjacent thereto.”[ 15 ]

															When this convoluted formulation is parsed, it
tells us that at least some wetlands must qualify as “waters of the
United States.” The provision begins with a broad category, “the
waters of the United States,” which we may call category A. The
provision provides that States may permit discharges into these
waters, but it then qualifies that States cannot permit discharges
into a subcategory of A: traditional navigable waters (category B).
Finally, it states that a third category (category C), consisting
of wetlands “adjacent” to traditional navigable waters, is
“includ[ed]” within B. Thus, States may permit discharges into A
minus B, which includes C. If C (adjacent wetlands) were not part
of A (“the waters of the United States”) and therefore subject to
regulation under the CWA, there would be no point in excluding them
from that category. See Riverside Bayview , 474 U. S.,
at 138, n. 11 (recognizing that §1344(g) “at least suggest[s]
strongly that the term ‘waters’ as used in the Act does not
necessarily exclude ‘wetlands’ ”); Rapanos , 547
U. S., at 768 (opinion of Kennedy, J.). Thus, §1344(g)(1)
presumes that certain wetlands constitute “waters of the United
States.”

															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’s reach. See Riverside
Bayview , 474 U. S., at 138, n. 11. Instead, we must
harmonize the reference to adjacent wetlands in §1344(g)(1) with
“the waters of the United States,” §1362(7), which is the actual
term we are tasked with interpreting. The formulation discussed
above tells us how: because the adjacent wetlands in §1344(g)(1)
are “includ[ed]” within “the waters of the United States,” these
wetlands must qualify as “waters of the United States” in their own
right. In other words, they must be indistinguishably part of a
body of water that itself constitutes “waters” under the CWA. See supra , at 14.

															This understanding is consistent with
§1344(g)(1)’s use of “adjacent.” Dictionaries tell us that the term
“adjacent” may mean either “contiguous” or “near.” Random House
Dictionary 25; see Webster’s Third New International Dictionary 26
(1976); see also Oxford American Dictionary & Thesaurus 16 (2d
ed. 2009) (listing “adjoining” and “neighboring” as synonyms of
“adjacent”). But “construing statutory language is not merely an
exercise in ascertaining ‘the outer limits of a word’s definitional
possibilities,’ ” FCC v. AT&T Inc. , 562 U.S.
397 , 407 (2011) (alterations omitted), and here, “only one
. . . meanin[g] produces a substantive effect that is
compatible with the rest of the law,” United Sav. Assn. of
Tex. v. Timbers of Inwood Forest Associates , Ltd ., 484 U.S.
365 , 371 (1988). Wetlands that are separate from 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 tucked an 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 “hide elephants in mouseholes” by “alter[ing] the
fundamental details of a regulatory scheme in vague terms or
ancillary provisions.” Whitman v. American Trucking
Assns. , Inc ., 531 U.S.
457 , 468 (2001). We cannot agree with such an implausible
interpretation here.

															If §1344(g)(1) were read to mean that the CWA
applies to wetlands that are not indistinguishably part of
otherwise covered “waters of the United States,” see supra ,
at 14, it would effectively amend and substantially broaden
§1362(7) to define “navigable waters” as “waters of the United
States and adjacent wetlands .” But §1344(g)(1)’s use of the
term “including” makes clear that it does not purport to do—and in
fact, does not do—any such thing. See National Assn. of Home
Builders v. Defenders of Wildlife , 551 U.S.
644 , 662–664, and n. 8 (2007) (recognizing that implied
amendments require “ ‘clear and manifest’ ” evidence of
congressional intent). It merely reflects Congress’s assumption
that certain “adjacent” wetlands are part of “waters of the
United States.”

															This is the thrust of observations in decisions
going all the way back to Riverside Bayview. In that case,
we deferred to the Corps’ decision to regulate wetlands actually
abutting a navigable waterway, but we recognized “the inherent
difficulties of defining precise bounds to regulable waters.” 474
U. S., at 134; see also id ., at 132 (noting that “the
transition from water to solid ground is not necessarily or even
typically an abrupt one” due to semi-aquatic features like shallows
and swamps). In such a situation, we concluded, the Corps could
reasonably determine that wetlands “adjoining bodies of water” were
part of those waters. Id. , at 135, and n. 9; see also SWANCC , 531 U. S., at 167 (recognizing that Riverside Bayview “held that the Corps had . . .
jurisdiction over wetlands that actually abutted on a navigable
waterway”).

															In Rapanos , the plurality spelled out
clearly when adjacent wetlands are part of covered waters. It
explained that “waters” may fairly be read to include only those
wetlands that are “as a practical matter indistinguishable from
waters of the United States,” such that it is “difficult to
determine where the ‘water’ ends and the ‘wetland’ begins.” 547
U. S., at 742, 755 (emphasis deleted). That occurs when
wetlands have “a continuous surface connection to bodies that are
‘waters of the United States’ in their own right, so that there is
no clear demarcation between ‘waters’ and wetlands.” Id. , at
742; cf. 33 U. S. C. §2802(5) (defining “coastal waters”
to include wetlands “having unimpaired connection with the open sea
up to the head of tidal influence”). We agree with this formulation
of when wetlands are part of “the waters of the United States.” We
also acknowledge that temporary interruptions in surface connection
may sometimes occur because of phenomena like low tides or dry
spells.[ 16 ]

															In sum, we hold that the CWA extends to only
those wetlands that are “as a practical matter indistinguishable
from waters of the United States.” Rapanos , 547 U. S.,
at 755 (plurality opinion) (emphasis deleted). This requires the
party asserting jurisdiction over adjacent wetlands to establish
“first, that the adjacent [body of water constitutes]
. . . ‘water[s] of the United States,’ ( 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 ‘water’ ends and the ‘wetland’ begins.” Id. , at 742.

															IV

															The EPA resists this reading of §1362(7) and
instead asks us to defer to its understanding of the CWA’s
jurisdictional reach, as set out in its most recent rule defining
“the waters of the United States.” See 88 Fed. Reg. 3004. This
rule, as noted, provides that “adjacent wetlands are covered by the
Act if they ‘possess a “significant nexus” to’ traditional
navigable waters.” 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
“adjacent” when they are “neighboring” to covered waters, even if
they are 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. Beyond that, it clashes with “background principles of
construction” that apply to the interpretation of the relevant
statutory provisions. 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 “require[s] Congress to
enact exceedingly clear language if it wishes to significantly
alter the balance between federal and state power and the power of
the Government over private property.” United States Forest
Service v. Cowpasture River Preservation Assn ., 590
U. S. ___, ___–___ (2020) (slip op., at 15–16); 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’s
reach would impinge on this authority. The area covered by wetlands
alone is vast—greater than the combined surface area of California
and Texas. And the scope of the EPA’s conception of “the waters of
the United States” is truly staggering when 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’s express policy to “preserve” the States’ “primary”
authority over land and water use, §1251(b), this Court has
required a clear statement from Congress when determining the scope
of “the waters of the United States.” 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 §1362(7), and its
“significant nexus” theory is particularly implausible. It suggests
that the meaning of “the waters of the United States” is so “broad
and unqualified” 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 “significant nexus” test in order to reduce the
clash between its understanding of “the waters of the United
States” and the term defined by that phrase, i.e. ,
“navigable waters.” As discussed, however, the meaning of “waters”
is more limited than the EPA believes. See supra , at 14.
And, in any event, the CWA never mentions the “significant nexus”
test, so the EPA has no statutory basis to impose it. See Rapanos , 547 U. S., at 755–756 (plurality opinion).

															2

															Second, the EPA’s interpretation gives rise to
serious vagueness concerns in light of the CWA’s criminal
penalties. Due process requires Congress to define penal statutes
“ ‘with sufficient definiteness that ordinary people can
understand what conduct is prohibited’ ” and “ ‘in a
manner that does not encourage arbitrary and discriminatory
enforcement.’ ” McDonnell v. United States , 579
U.S. 550, 576 (2016) (quoting Skilling v. United
States , 561 U.S.
358 , 402–403 (2010)). Yet the meaning of “waters of the United
States” under the EPA’s interpretation remains “hopelessly
indeterminate.” 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 “waters of the United States” to “conceivably
cover literally every body of water in the country” is the
significant-nexus test. Tr. of Oral Arg. 70–71; accord, Brief for
Respondents 32. But the boundary between a “significant” and an
insignificant nexus is far from clear. And to add to the
uncertainty, the test introduces another vague concept—“similarly
situated” waters—and then assesses the aggregate effect of that
group based on a variety of open-ended factors that evolve as
scientific understandings 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 “left ‘to feel their way on a
case-by-case basis.’ ” Sackett , 566 U. S., at 124
(quoting Rapanos , 547 U. S., at 758 (Roberts,
C. J., concurring)). Where a penal statute could sweep so
broadly as to render criminal a host of what might otherwise be
considered ordinary activities, we have been wary about going
beyond what “Congress certainly intended the statute to cover.” Skilling , 561 U. S., at 404.

															Under these two background principles, the
judicial task when interpreting “the waters of the United States”
is to ascertain whether clear congressional authorization exists
for the EPA’s claimed power. The EPA’s 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
“adjacent” wetlands when it adopted §1344(g)(1). Thus, it argues
that “waters of the United States” covers any wetlands that are
“bordering, contiguous, or neighboring” to covered waters. 88 Fed.
Reg. 3143. The principal opinion concurring in the judgment adopts
the same position. See post , at 10–12 (Kavanaugh, J.,
concurring in judgment). The EPA notes that the Corps had
promulgated regulations adopting that interpretation before
Congress amended the CWA in 1977 to include the reference to
“adjacent” wetlands in §1344(g)(1). See 42 Fed. Reg. 37144. This
term, the EPA contends, was “ ‘ “obviously transplanted
from” ’ ” the Corps’ 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 §§1362(7) and 1344(g)(1)
shows that “adjacent” cannot include wetlands that are not part of
covered “waters.” See supra , at 22.

															Second, this ratification theory cannot be
reconciled with our cases. We have repeatedly recognized that
§1344(g)(1) “ ‘does not conclusively determine the
construction to be placed on . . . the relevant
definition of “navigable waters.” ’ ” SWANCC , 531
U. S., at 171 (quoting Riverside Bayview , 474
U. S., at 138, n. 11); accord, Rapanos , 547
U. S., at 747–748, n. 12 (plurality opinion).
Additionally, SWANCC rejected the closely analogous argument
that Congress ratified the Corps’ definition of “waters of the
United States” by including “ ‘other . . .
waters’ ” in §1344(g)(1). 531 U. S., at 168–171. And yet,
the EPA’s argument would require us to hold that §1344(g)(1)
actually did amend the definition of “navigable waters” precisely
for the reasons we rejected in SWANCC .

															Third, the EPA cannot provide the sort of
“overwhelming evidence of acquiescence” necessary to support its
argument in the face of Congress’s failure to amend §1362(7). Id. , at 169–170, n. 5. We will infer that a term was
“ ‘transplanted from another legal source’ . . .
only when a term’s meaning was ‘well-settled’ before the
transplantation.” Kemp v. United States , 596
U. S. ___, ___–___ (2022) (slip op., at 9–10). Far from being
well settled, the Corps’ definition was promulgated mere months
before the CWA became law, and when the Corps adopted that
definition, it candidly acknowledged the “rapidly changing nature
of [its] regulatory programs.” 42 Fed. Reg. 37122. Tellingly, even
the 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 “Congress used an unusual term that
had a long regulatory history in [the] very regulatory context” at
issue).

															The EPA also advances various policy arguments
about the ecological consequences of a narrower definition of
adjacent. But the CWA does not define the EPA’s jurisdiction based
on ecological importance, and we cannot redraw the Act’s allocation
of authority. See Rapanos , 547 U. S., at 756 (plurality
opinion). “The Clean Water Act anticipates a partnership between
the States and the Federal Government.” 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 17–27.

															V

															Nothing in the separate opinions filed by
Justice Kavanaugh and Justice Kagan undermines our analysis.
Justice Kavanaugh claims that we have “rewrit[ten]” the CWA, post , at 12 (opinion concurring in judgment), and Justice
Kagan levels similar charges, post , at 3–4 (opinion
concurring in judgment). These arguments are more than unfounded.
We have analyzed the statutory language in detail, but the separate
opinions pay no attention whatsoever to §1362(7), the key statutory
provision that limits the CWA’s geographic reach to “the waters of the United States.” Thus, neither separate opinion
even attempts to explain how the wetlands included in their
interpretation fall within a fair reading of “waters.” Textualist
arguments that ignore the operative text cannot be taken
seriously.

															VI

															In sum, we hold that the CWA extends to only
those “wetlands with a continuous surface connection to bodies that
are ‘waters of the United States’ in their own right,” so that they
are “indistinguishable” from those waters. 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’ property are distinguishable from any
possibly covered waters.

															*  *  *

															We reverse the judgment of the United States
Court of Appeals for the Ninth Circuit and remand the case for
further proceedings consistent with this opinion.

															It is so ordered. Notes 1 86Stat. 816, as amended,
33 U. S. C. §1251 et seq . 2 40 CFR §230.3(s)(3)
(2008). 3 See 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 , 745–746 (1994). 4 See N. Hines, Nor Any
Drop To Drink: Public Regulation of Water Quality, 52 Iowa
L. Rev. 186, 196–207 (1966). 5 See 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). 6 EPA & Corps, Clean
Water Act Jurisdiction Following the U. S. Supreme Court’s
Decision in Rapanos v. United States & Carabell v. United States 7–11 (2007) (2007
Guidance). 7 See Corps, Wetlands
Delineation Manual (Tech. Rep. Y–87–1, 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–07–24, 2007). 8 GAO, Waters and Wetlands:
Corps of Engineers Needs To Evaluate Its District Office Practices
in Determining Jurisdiction 26 (GAO–04–297, 2004) (GAO
Report). 9 EPA & Corps,
Memorandum, Supreme Court Ruling Concerning CWA Jurisdiction Over
Isolated Waters 3 (2001) (alteration omitted). 10 N.
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 7–11; EPA & Corps, Clean Water
Act Jurisdiction Following the U. S. Supreme Court’s Decision
in Rapanos v. United States & Carabell v. United States 8–12 (2008) (2008 Guidance). 11 EPA
& Dept. of the Army, Economic Analysis of the EPA-Army Clean
Water Rule 11 (2015). 12 See
88 Fed. Reg. 3134; Corps, Questions and Answers for Rapanos and Carabell Decision 16 (2007); J. Finkle, Jurisdictional
Determinations: An Important Battlefield in the Clean Water Act
Fight, 43 Ecology L. Q. 301, 314–315 (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). 13 See, e.g. , 16 U. S. C. §745 (“the waters of the
seacoast . . . the waters of the lakes”); §4701(a)(7)
(“waters of the Chesapeake Bay”); 33 U. S. C. §4 (“the
waters of the Mississippi River and its tributaries”); 43
U. S. C. §390h–8(a) (“the waters of Lake Cheraw, Colorado
. . . the waters of the Arkansas River”); 46
U. S. C. §70051 (allowing the Coast Guard to take control
of particular vessels during an emergency in order to “prevent
damage or injury to any harbor or waters of the United
States”). 14 See, e.g. , United States v. Alvarez-Machain , 504 U.S.
655 , 661, n. 7 (1992) (discussing a treaty “to allow
British passenger ships to carry liquor while in the waters of the
United States”); Kent v. Dulles , 357 U.S.
116 , 123 (1958) (discussing a prohibition on boarding “vessels
of the enemy on waters of the United States”); New Jersey v. New York City , 290 U.S.
237 , 240 (1933) (enjoining employees of New York City from dumping garbage
“into the ocean, or waters of the United States, off the coast of
New Jersey”); Cunard S. S. Co. v. Mellon , 262 U.S.
100 , 127 (1923) (holding that the National Prohibition Act did
not apply to “merchant ships when outside the waters of the United
States”); Keck v. United States , 172 U.S.
434 , 444–445 (1899) (holding that concealing imported goods on
vessels “at the time of entering the waters of the United States,”
without more, did not constitute smuggling). 15 This
provision states in relevant part: “The Governor of any State
desiring to administer its own individual and general permit
program for the 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 full and
complete description of the program it proposes to establish and
administer under State law or under an interstate compact.” 33
U. S. C. §1344(g)(1). 16 Although a barrier separating a
wetland from a water of the United States would ordinarily remove
that wetland from federal jurisdiction, a 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’s removal
because it violates the Act, see 33 U. S. C.
§§1319(a)–(b), that unlawful barrier poses no bar to its
jurisdiction. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–454

															_________________

															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’s opinion in full. The Clean
Water Act (CWA) confines the Federal Government’s jurisdiction to
“ ‘navigable waters,’ ” defined as “the waters of the
United States.” 33 U. S. C. §§1311(a), 1362(7), (12). And
the Court correctly holds that the term “waters” reaches
“ ‘only those relatively permanent, standing or continuously
flowing bodies of water “ ‘forming geographic[al]
features’ ” that are described in ordinary parlance as
“streams, oceans, rivers, and lakes.” ’ ” 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 “ ‘continuous surface connection to bodies that are
“waters of the United States” in their own right’ ” such that
“ ‘there is no clear demarcation between “waters” and
wetlands.’ ” Ante , at 21 (quoting Rapanos , 547
U. S., at 742 (plurality opinion)).

															However, like the Rapanos plurality
before it, the Court focuses only on the term “waters”; it does not
determine the extent to which the CWA’s other jurisdictional
terms—“navigable” and “of the United States”—limit the reach of the
statute. Ante , at 14–18; Rapanos , 547 U. S., at
731 (plurality opinion). I write separately to pick up where the
Court leaves off.

															I

															The CWA’s jurisdictional terms have a long
pedigree and are bound up with Congress’ 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, 173–174 (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—by, for example, regulating
obstructions hindering navigable capacity. By the time of the CWA’s
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 “navigable
waters,” “navigable waters of the United States,” and “waters of
the United States” were still understood as invoking only Congress’
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, “land and water
use lies at the core of traditional state authority.” 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,
1656–1659 (2013); R. Walston, The Federal Commerce and Navigation
Powers: Solid Waste Agency of Northern Cook County ’s
Undecided Constitutional Issue, 42 Santa Clara L. Rev. 699,
721 (2002) (Walston). Upon Independence, this sovereignty was
transferred to each of the 13 fully sovereign States. See Martin v. Lessee of Waddell , 16 Pet. 367, 410 (1842)
(“[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”). Thus, today, States enjoy
primary sovereignty over their waters, including navigable
waters—stemming either from their status as independent sovereigns
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) (“The shores of navigable waters, and the soils under them,
were not granted by the Constitution to the United States, but were
reserved to the states respectively. . . . The new states
have the same rights, sovereignty, and jurisdiction over this
subject as the original states”); see also M. Starr, Navigable
Waters of the United States—State and National Control, 35 Harv.
L. Rev. 154, 169–170 (1921). The Federal Government therefore
possesses no authority over navigable waters except that granted by
the Constitution.

															The Federal Government’s authority over certain
navigable waters is granted and limited by the Commerce Clause,
which grants Congress power to “regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.”
Art. I, §8, cl. 3. From the beginning, it was understood that
“[t]he power to regulate commerce, includes the power to regulate
navigation,” but only “as connected with the commerce with foreign
nations, and among the states.” United States v. Coombs , 12 Pet. 72, 78 (1838) (Story, J., for the Court);
accord, Gibbons v. Ogden , 9 Wheat. 1, 190 (1824)
(“All America understands . . . the word ‘commerce,’ to
comprehend navigation. It was so understood, and must have been so
understood, when the constitution was framed”); see also R.
Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi.
L. Rev. 101, 125–126 (2001) (Barnett); R. Natelson, The Legal
Meaning of “Commerce” in the Commerce Clause, 80 St. John’s
L. Rev. 789, 807–810 (2006). In fact, “shipping
. . . was at that time the indispensable means for the
movement of goods.” Barnett 123. The Commerce Clause thus vests
Congress with a limited authority over what we now call the
“channels of interstate commerce.” United States v. Lopez , 514 U.S.
549 , 558–559 (1995); see also American Trucking Assns.,
Inc. v. Los Angeles , 569 U.S.
641 , 656–657 (2013) (Thomas, J., concurring).

															This federal authority, however, does not
displace States’ traditional sovereignty over their waters. “The
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.” Gilman v. Philadelphia , 3 Wall. 713, 724–725 (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, 550–551 (No.
3,230) (CC ED Pa. 1823) (Washington, J., for the Court). It
encompassed only “the power to keep them open and free from any
obstruction to their navigation” and “to remove such obstructions
when they exist.” Gilman , 3 Wall., at 725. Thus, any
activity that “interferes with, obstructs, or prevents such
commerce and navigation, though done on land, may be punished by
congress.” Coombs , 12 Pet., at 78. But, activities that
merely “affect” water-based commerce, such as those regulated by
“[i]nspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal commerce
of a State,” are not within Congress’ channels-of-commerce
authority. Gibbons , 9 Wheat., at 203; see also Corfield , 6 F. Cas., at 550.

															This understanding of the limits of Congress’
channels-of-commerce authority prevailed through the end of the
19th century. The Court’s cases consistently recognized that
Congress has authority over navigable waters for only the limited
“purpose of regulating and improving navigation.” Gibson v. United States , 166 U.S.
269 , 271–272 (1897); see also Port of Seattle v. Oregon & Washington R. Co. , 255 U.S.
56 , 63 (1921) (“The right of the United States in the navigable
waters within the several States is limited to the control thereof
for purposes of navigation”). And, this Court was careful to
reaffirm that “technical 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” as determined by “local law.” 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 “prohibi[t]” “the
creation of any obstruction, not affirmatively authorized by law,
to the navigable capacity of any waters, in respect of which the
United States has jurisdiction.” §10, 26Stat. 454. The 1894 Act
made it unlawful to deposit matter into “any harbor or river of the
United States” that the Federal Government has appropriated money
to improve and prohibited injuring improvements built by the United
States in “any of its navigable waters.” §6, 28Stat. 363.

															Congress consolidated and expanded these
authorities in the 1899 Act. Section 10 of the Act prohibits “[t]he
creation of any obstruction . . . to the navigable
capacity of any of the waters of the United States,” requires a
permit to build “structures in any . . . water of the
United States,” and makes it unlawful “to excavate or fill, or in
any manner to alter or modify the course, location, condition, or
capacity” of any water, “within the limits of any breakwater, or of
the channel of any navigable water of the United States.” 30 Stat.
1151 (codified, as amended, at 33 U. S. C. §403). In
addition, §13 of the Act, sometimes referred to as the “Refuse
Act,” prohibits throwing, discharging, or depositing “any 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.” 30Stat.
1152 (codified, as amended, at 33 U. S. C. §407). Section
13 also prohibits depositing material “on the 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 . . . whereby navigation shall or may be impeded or
obstructed.” Ibid. Three things stand out about these provisions.
First, they use the terms “navigable water,” “water of the United
States,” and “navigable water of the United States”
interchangeably. 33 U. S. C. §§403 and 407; see also V.
Albrecht & S. Nickelsburg, Could SWANCC Be Right? A New
Look at 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, 608–609 (CA3 1974); New
England Dredging Co. v. United States, 144 F. 932,
933–934 (CA1 1906); Blake v. United States , 181 F. Supp. 584 , 587–588 (ED Va. 1960).

															Second, Congress asserted its authority only to
the extent that obstructions or refuse matter could impede
navigation or navigable capacity. Thus, in United States v. Rio Grande Dam & Irrigation Co. , 174
U.S. 690 (1899), this Court recognized that any “act sought to
be enjoined” under the 1890 Act must be “one which fairly and
directly tends to obstruct (that is, interfere with or diminish)
the navigable capacity of a stream.” Id. , at 709; accord, Lake Shore & Michigan Southern R. Co. v. Ohio , 165 U.S.
365 , 369 (1897) (holding that federal jurisdiction over
“navigable waters” was limited to preventing “interfering with
commerce”). Similarly, in Wisconsin v. Illinois , 278 U.S.
367 (1929), this Court interpreted the 1899 Act in light of the
constitutional prohibition on Congress “arbitrarily destroy[ing] or
impair[ing] the rights of riparian owners by legislation which has
no real or substantial relation to the control of navigation or
appropriateness to that end.” Id. , at 415.[ 1 ] The touchstone, thus, remained actual
navigation.

															Third, §13 of the Act requires some form of
surface water connection between a tributary and traditionally
navigable waters. See 33 U. S. C. §407 (prohibiting
depositing refuse “into any tributary of any navigable water from
which the same shall float or be washed into such navigable
water”). To be sure, the Refuse Act also prohibits leaving refuse
“on the 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.” Ibid. But, this
prohibition reflects nothing more than Congress’ traditional
authority to regulate acts done on land that directly impair the
navigability of traditionally navigable waters. See Rio Grande
Dam & Irrigation Co. , 174 U. S., at 708 (explaining
that the Act reaches “any obstruction to the navigable capacity,
and anything, wherever done or however done, . . . which
tends to destroy the navigable capacity of one of the navigable
waters of the United States”); 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’ authority over navigation, as
traditionally 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’ traditional sovereignty over
their navigable waters and allowed Congress to regulate activities
even on land that could directly cause obstructions to navigable
capacity. Gilman , 3 Wall., at 724–725; Coombs , 12
Pet., at 78.

															In light of the depth of this new federal power,
it was carefully limited—mere “effects” on interstate commerce were
not sufficient to trigger Congress’ navigation authority. As one
District Court presciently observed in interpreting the term
“navigable waters of the United States” in the Steamboat Act of
1838:

															“To 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 occupation and employment in life are remotely connected
with 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 to regulate all these employments, and a thousand
others equally 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 ‘commerce with
foreign nations, or among the several states, or with the Indian
tribes,’ it should be a part of that commerce, to authorize
congress to regulate it.” The James Morrison , 26 F. Cas.
579, 581 (No. 15,465) (DC Mo. 1846).

															The Court’s observation that “federal regulation
was largely limited to ensuring that ‘traditional navigable waters’
. . . remained free of impediments,” 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’
authority over waters was defined by the traditional concept of
navigability, imported with significant modifications from the
English common law.[ 3 ] Thus,
Congress could regulate only “navigable waters.” Consistent with
that backdrop, the term “navigable waters”—used interchangeably
with “waters of the United States” and “navigable waters of the
United States”—referred to the waters subject to Congress’
traditional authority over navigable waters until the enactment of
the CWA.

															1

															The term “navigable waters” has been in use
since the founding to refer to the highways of commerce that were
key to the Nation’s development. Great cities like Philadelphia and
St. Louis emerged at first as commercial ports along these
navigable waters. The Framers recognized that “Providence has in a
particular manner blessed” our country with “[a] succession of
navigable waters” that “bind [the Nation] 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 various
commodities.” The Federalist No. 2, p. 38 (C. Rossiter ed.
1961) (J. Jay). These “vast rivers, stretching far inland” have
been of “transcendent importance” to our Nation’s economic
expansion by forming “great highways” for commerce. L. Houck, Law
of Navigable Rivers xiii (1868).

															This Court authoritatively set out the scope of
the term “navigable waters of the United States” in the seminal
case of The Daniel Ball , 10 Wall. 557 (1871). That case
arose under the Steamboat Act of 1838, which prohibited the
transportation of goods “upon the bays, lakes, rivers, or other
navigable waters of the United States.” §2, 5 Stat. 304. This Court
held that the term “navigable” refers to waters that are “navigable
in fact,” meaning that “they are used, or are susceptible of being
used, in their ordinary condition, as highways for commerce, over
which trade and travel are or may be conducted in the customary
modes of trade and travel on water.” The Daniel Ball , 10
Wall., at 563. The Court then explained that navigable waters are
“of the United States,” “in contradistinction from the navigable
waters of the States, when they form in their ordinary condition 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.” Ibid. ; see also The Montello , 11
Wall. 411, 415 (1871) (“If . . . the river is not of
itself a highway for commerce with other States or foreign
countries, or does not form such highway by 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”). It is this “junction”
between waters to “for[m] a continued highway for commerce, both
with other States and with foreign countries,” that brings the
water “under the direct control of Congress in the exercise of its
commercial power.” The Daniel Ball , 10 Wall., at 564. The
definition of a “navigable water of the United States” was thus
linked directly to the limits on Congress’ 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 “navigable waters of the United
States,” as used in the 1890 River and Harbor Act, did not “prevent
the exercise by the State of Louisiana of its power to reclaim
swamp and overflowed lands by regulating and controlling the
current of small streams not used habitually as arteries of
interstate commerce.” 177 U. S., at 632. The Court observed that
applying the Act to wetlands reclamation “would extend the
paramount jurisdiction of the United States over all the flowing
waters in the States.” Id. , at 633. “If such were the
necessary construction of the” term “navigable water,” the Court
explained, the River and Harbor Act’s “validity might well be
questioned.” Ibid. But, the Court declined to interpret the
Act to reach the wetlands, because it recognized that the phrase
“navigable waters of the United States” encompassed only those
waters reached by the traditional channels-of-commerce
authority:

															“When 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 its international and interstate aspect, and a
practical construction must be put on these enactments as intended
for such large and important purposes.” Ibid. The Court thus held that the mere use of a
wetland by fishermen was not sufficient to make the wetland a
navigable water of the United States; it “was 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.” Id. , at 627.[ 4 ]

															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 and Harbor Act of 1899 reaches
waters that are not currently capable of supporting interstate
commerce, though they once did. 256 U. S., at 123–124. 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 408–409. While these cases expanded
the outer boundaries of the term, creating an expanded form of the Daniel Ball test, they reflect the Court’s longstanding view
that the statutory term “navigable water” required application of
the Daniel Ball test.

															2

															In the New Deal era, as is well known, this
Court adopted a greatly expanded conception of Congress’ commerce
authority by permitting Congress to regulate any private intrastate
activity that substantially affects interstate commerce, either by
itself or when aggregated with many similar activities. See Wickard v. Filburn , 317 U.S.
111 , 127–129 (1942); see also United States v. Darby , 312 U.S.
100 , 119 (1941). Yet, this expansion did not fundamentally
change the Court’s understanding that the term “navigable waters”
referred to waters used for interstate commerce. Thus, in Appalachian Elec. , the Court continued to apply the
concept of navigability to determine the scope of Congress’
Commerce Clause authority to require licenses under the Federal
Water Power Act for the construction of hydroelectric dams in
“navigable waters.” 311 U. S., at 406–410. Only after applying
the Daniel Ball definition to determine that the river in
question was navigable did the Court hold that Congress had plenary
authority over the erection of structures in the river, regardless
of whether the structure actually impeded navigability. 311
U. S., at 423–426. While this represented an expansive
application of the old concept that Congress can prevent
obstructions to navigable capacity, see supra , at 4, 7–8, Appalachian Elec. made clear that the term “navigable
waters” remained tethered to Congress’ traditional
channels-of-commerce authority—not to the broader conceptions of
the commerce authority adopted 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 “navigable
waters,” this time as used in the Flood Control Act of 1936, was to
be interpreted in light of the expanded Daniel Ball test.
313 U. S., at 522–525. Significantly, Oklahoma was
decided mere months after Darby , one of the most significant
cases expanding the scope of the commerce authority. 312
U. S., at 119. However, Oklahoma did not so much as
mention Darby in construing the jurisdiction Congress
conveyed in the term “navigable waters.” Instead, it cited Darby only in passing and to support the argument that, once
a river is deemed navigable under the channels-of-commerce
authority, Congress has authority to protect “the nation’s arteries
of commerce” by regulating intrastate activities on nonnavigable
parts and tributaries of the navigable river lest such activities
“impai[r] navigation itself.” 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 “navigable
waters” refers solely to the aquatic channels of interstate
commerce over which Congress traditionally exercised authority.

															3

															This understanding of the term “navigable
waters”— i.e. , as shorthand for waters subject to Congress’
authority under the Daniel Ball test—persisted up to the
enactment of the CWA. See, e.g. , Stoeco Homes, Inc. ,
498 F. 2d, at 608–609; United States v. Joseph G.
Moretti, Inc. , 478 F.2d 418, 428–429 (CA5 1973); see also D.
Guinn, An Analysis of Navigable Waters of the United States, 18
Baylor L. Rev. 559, 579 (1966) (“[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”). As
a court observed near the time of the CWA’s enactment, “[a]lthough
the definition of ‘navigability’ laid down in The Daniel
Ball has subsequently been modified and clarified, its
definition of ‘navigable water of the United States,’ insofar as it
requires a navigable interstate linkage by water, appears to remain
unchanged.” Hardy Salt Co. v. Southern Pacific Transp.
Co. , 501 F.2d 1156, 1167 (CA10 1974) (citations omitted). This
Court’s cases, too, continued to apply traditional navigability
concepts in cases under the River and Harbor Acts right up to the
CWA’s 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 (§13 of the 1899 Act) because “its
presence in our rivers and harbors is both a menace to navigation
and a pollutant”); United States v. Republic Steel
Corp. , 362 U.S.
482 , 487–491 (1960) (“diminution of the navigable capacity of a
waterway” required for violation of the Refuse Act). Thus, on the
eve of the CWA’s enactment, the term “navigable waters” meant those
waters that are, were, or could be used as highways of interstate
or foreign commerce.

															II

															This history demonstrates that Congress was
not writing on a blank slate in the CWA, which defines federal
jurisdiction using the same terms used in the River and Harbor
Acts: “navigable waters” and “the waters of the United States,” 33
U. S. C. §§1311(a), 1362(7), (12). As explained above,
courts and Congress had long used the terms “navigable water,”
“navigable water of the United States,” and “the waters of the
United States” interchangeably to signify those waters to which the
traditional channels-of-commerce authority extended. See supra , at 6. The terms “navigable waters” and “waters of the
United States” shared a core requirement that the water be a
“highway over which commerce is or may be carried,” with the term
“of the United States” doing the independent work of requiring that
such commerce “be carried on with other States or foreign
countries.” 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 ]

															The Army Corps of Engineers originally
understood the CWA in precisely this way. In its 1974 regulation
establishing the first CWA §404 permitting program,[ 6 ] the Corps interpreted the term “the waters
of the United States” to establish jurisdiction over the
traditional navigable waters as determined by the expanded Daniel Ball test, noting also that the term is limited by
Congress’ navigation authority. 39 Fed. Reg. 12115. The Corps
anchored its jurisdiction in the expanded Daniel Ball test,
defining “navigable waters” to include “those 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
susceptible for use for purposes of interstate or foreign
commerce.” 33 CFR §209.120(d)(1) (1974); see also
§§209.260(d)(1)–(3) (requiring “[p]ast, present, or potential
presence of interstate or foreign commerce,” “[p]hysical
capabilities for use by commerce,” and “[d]efined geographic limits
of the water body”). The regulations also made clear that
traditional navigability factors were the baseline for CWA
jurisdiction: “It is the water body’s capability of use by the
public for purposes of transportation or commerce which is the
determinative factor.” §209.260(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’ New Deal era authority 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, 1323–1329 (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); United States v. Holland , 373 F. Supp. 665 , 669, 672–674 (MD Fla. 1974); 40 CFR §125.1(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 (“The foregoing [legislative history] compels
the Court to conclude that the former test of navigability was
indeed defined away in the [CWA]”). 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 reach
only those waters subject to Congress’ channels-of- commerce
authority. See supra , at 15.

															These courts and the EPA had only one textual
hook for their interpretation: In defining the term “navigable
waters” as “the waters of the United States,” the CWA seemed to
drop the term “navigable” from the operative part of the
definition. Seizing on this phrasing, the EPA’s general counsel
asserted in 1973 that “the deletion of the word ‘navigable’
eliminates the requirement of navigability. The only remaining
requirement, then, is that pollution of waters covered by the bill
must be capable of affecting interstate commerce.” 1 EPA Gen.
Counsel Op. 295 (1973). Similarly, the District Court that vacated
the Corps’ original CWA definition held, without any analysis or
citation, that the term “the waters of the United States” in the
CWA is “not limited to the traditional tests of navigability.” National Resource Defense Council , 392 F. Supp., at
671.

															That interpretation cannot be right. For one,
the terms “navigable waters” and “the waters of the United States”
had long been used synonymously by courts and Congress. The CWA
simply used the terms in the same manner as the River and Harbor
Acts. Moreover, no source prior to the CWA had ever asserted that
the term “the waters of the United States,” when not modified by
“navigable,” reached any water that may affect interstate commerce.
Instead, The Daniel Ball made clear that “[t]he phrase
‘waters of the United States, in contradistinction from the
navigable waters of the States,’ . . . distinguishes
interstate from intrastate waters.” Albrecht & Nickelsburg
11049 (quoting The Daniel Ball , 10 Wall., at 563); accord, 1
A. Knauth, Benedict on Admiralty §44, p. 96 (6th ed. 1940) (“The
inland lakes of various States are navigable but, having no
navigable outlet linking them with our system of water-ways, have
never been held to be public waters of the United
States ” (emphasis added)). The text of the CWA extends
jurisdiction to “navigable waters,” and—precisely tracking The
Daniel Ball —clarifies that it reaches “the waters of the United
States,” rather than the navigable waters of the States.

															Thus, the CWA’s use of the phrase “the waters of
the United States” reinforces, rather than lessens, the need for a
water to be at least part of “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.” The Daniel Ball , 10 Wall., at 563. At
most, the omission of the word “navigable” signifies that the CWA
adopts the expanded Daniel Ball test—that includes waters
that are, have been, or can be reasonably made navigable in fact—in
its statutory provisions. The Federal Government’s interpretation,
by contrast, renders the use of the term “navigable” a nullity and
involves an unprecedented and extravagant reading of the
well-understood term of art “the waters of the United States.” See
Albrecht & Nickelsburg 11049 (“EPA’s conclusion is ahistorical
as well as illogical”).[ 7 ]
“ [T]he waters of the United States” does not mean any water in the United States.

															There would be little need to explain any of
this if the agencies had not effectively flouted our decision in SWANCC , which restored navigability as the touchstone of
federal jurisdiction under the CWA, and rejected the key arguments
supporting an expansive interpretation of the CWA’s text. We
expressly held that Congress’ “use of the phrase ‘waters of the
United States’ ” in the CWA is not “a basis for reading the
term ‘navigable waters’ out of the statute”—directly contradicting
the EPA’s 1973 interpretation, upon which every subsequent
expansion of its authority has been based. 531 U. S., at 172.
We also held that the Corps did not “mist[ake] Congress’ intent”
when it promulgated its 1974 regulations, under which “ ‘the
determinative factor’ ” for navigability was a “ ‘water
body’s capability of use by the public for purposes of
transportation or commerce.’ ” Id. , at 168 (quoting 33
CFR §209.260(e)(1)). In doing so, we rejected reliance on the CWA’s
“ambiguous” legislative history, which the EPA had used “to expand
the definition of ‘navigable waters’ ” 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 “to
exert anything more than its commerce power over navigation.” Ibid. ; see also id. , at 173 (rejecting the
Government’s argument that the CWA invokes “Congress’ power to
regulate intrastate activities that ‘substantially affect’
interstate commerce”). SWANCC thus interpreted the text of the
CWA as implementing Congress’ “traditional jurisdiction over waters
that were or had been navigable in fact or which could reasonably
be so made”— i.e. , the expanded Daniel Ball test. 531
U. S., at 172 (citing Appalachian Elec. , 311
U. S., at 407–408).[ 9 ]
And, consistent with the traditional link between navigability and
the limits of Congress’ regulatory authority, SWANCC noted
that any broader interpretation would raise “significant
constitutional and federalism questions” and “result in a
significant impingement of the States’ traditional and primary
authority over land and water use.” 531 U. S., at 174. Both in
its holdings and in its mode of analysis, SWANCC cannot be
reconciled with the agencies’ sharp departure from the
centuries-old understanding of navigability and the traditional
limits of Congress’ channels-of-commerce authority.

															In sum, the plain text of the CWA and our
opinion in SWANCC demonstrate that the CWA must be
interpreted in light of Congress’ traditional authority over
navigable waters. See Albrecht & Nickelsburg 11055 (noting that SWANCC “states more than once that Congress’ use of the term
‘navigable waters’ signifies that Congress intended to exercise its
traditional authority over navigable waters, and not its broader
power over all things that substantially affect commerce”). 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 “the waters of the United States” that completely ignore
navigability and instead expand the CWA’s coverage to the outer
limits of the Court’s 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’
property declares “intrastate” waters, wetlands, and various other
wet things to be “waters of the United States” if their “use,
degradation or destruction . . . could affect interstate or foreign commerce.” 40 CFR §230.3(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 “are or could be used by
interstate or foreign travelers for recreational or other
purposes,” those “[f]rom which fish or shellfish are or could be
taken and sold in interstate or foreign commerce,” those that “are
used or could be used for industrial purposes by industries in
interstate commerce,” “[t]ributaries of ” any such waters, and
“[w]etlands adjacent to” any such waters. §§230.3(s)(3)(i)–(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’ traditional “commerce
power over navigation.” 531 U. S., at 168, n. 3.

															Nonetheless, under these boundless standards,
the agencies have “asserted jurisdiction over virtually any parcel
of land containing a channel or conduit . . . through
which rainwater or drainage may occasionally or intermittently
flow,” including “storm 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.” Rapanos ,
547 U. S., at 722 (plurality opinion). The agencies’
definition “engulf[s] entire cities and immense arid wastelands”
alike. Ibid. Indeed, because “the entire land area of the
United States lies in some drainage basin, and an endless network
of visible channels furrows the entire surface,” “any plot of land
containing such a channel may potentially be regulated.” 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, 116–117. This regime turns
Congress’ traditionally limited navigation authority on its head.
The baseline under the Constitution, the CWA, and the Court’s
precedents is state control of waters. See SWANCC , 531
U. S., at 174 (reaffirming “the States’ traditional and
primary power over land and water use”); Leovy , 177
U. S., at 633 (repudiating an interpretation of the 1899 Act
that would render practically every “creek or stream in the entire
country” a “navigable water of the United States” and “subject the
officers and agents of a State . . . to fine and
imprisonment” for draining a swamp “unless permission [was] first
obtained from the Secretary of War”). By contrast, the agencies’
interpretation amounts to a federal police power, exercised in the
most aggressive possible way.

															Thankfully, applying well-established
navigability rules makes this a straightforward case. The
“wetlands” on the Sacketts’ property are not “waters of the United
States” for several independently sufficient reasons. First, for
the reasons set out by the Court, the Sacketts’ wetlands are not
“waters” because they lack a continuous surface connection with a
traditional navigable water. See ante , at 27. Second, the
nonnavigable so-called “tributary” (really, a roadside ditch)
across the street from the Sacketts’ 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 Priest Lake is a navigable water under
the expanded Daniel Ball test. The lake is purely
intrastate, and the agencies have not shown that it is a highway of
interstate or foreign commerce. Instead, the agencies rely
primarily upon interstate tourism and the lake’s 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 21–24. But,
this is likely insufficient under the traditional navigability
tests to which the CWA pegs jurisdiction. See supra , at
10–13; accord, Tr. of Oral Arg. 119 (EPA counsel conceding that
Congress “hasn’t used its full Commerce Clause authority” in the
CWA). Finally, even assuming that a navigable water is involved,
the agencies have not established that the Sacketts’ 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 “the waters of the United States”: whether the water is
within Congress’ traditional authority over the interstate channels
of commerce. Here, no elaborate analysis is required to know that
the Sacketts’ 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’s Commerce Clause jurisprudence. The
eclipse of Congress’ well-defined authority over the channels of
interstate commerce tracks the Court’s expansion of Congress’ power
“[t]o regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.” Art. I, §8, cl. 3. As I
have explained at length, the Court’s Commerce Clause jurisprudence
has significantly departed from the original meaning of the
Constitution. See Gonzales v. Raich , 545 U.S.
1 , 58–59 (2005) (dissenting opinion); Lopez , 514
U. S., at 586–602 (concurring opinion). “The Clause’s text,
structure, and history all indicate that, at the time of the
founding, the term ‘ “commerce” consisted of selling, buying,
and bartering, as well as transporting for these purposes.’ ” Raich , 545 U. S., at 58. This meaning “stood in
contrast to productive activities like manufacturing and
agriculture,” and founding era sources demonstrate that “the term
‘commerce’ [was] consistently used to mean trade or exchange—not
all economically gainful activity that has some attenuated
connection to trade or exchange.” Ibid. (citing Lopez , 514 U. S., at 586–587 (Thomas, J., concurring);
Barnett 112–125).[ 10 ] By
departing from this limited meaning, the Court’s cases have
licensed federal regulatory schemes that would have been
“unthinkable” to the Constitution’s Framers and ratifiers. Raich , 545 U. S., at 59 (opinion of Thomas, J.).

															Perhaps nowhere is this deviation more evident
than in federal environmental law, much of which is uniquely
dependent upon an expansive interpretation of the Commerce Clause.
See Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc. , 452 U.S.
264 , 281–283 (1981); see also Brief for Claremont Institute’s
Center for Constitutional Jurisprudence as Amicus Curiae 17–25. And many environmental regulatory schemes seem to push even
the limits of the Court’s New Deal era Commerce Clause precedents,
see Hodel , 452 U. S. , at 309–313 (Rehnquist, J.,
concurring in judgment), to say nothing of the Court’s more recent
precedents reining in the commerce power. See, e.g. , SWANCC , 531 U. S., at 173–174; cf. Rancho Viejo,
LLC v. Norton , 334 F.3d 1158 , 1160 (CADC 2003) (Roberts, J., dissenting from
denial of rehearing en banc) (“The panel’s approach in this case
leads to the result that regulating the taking [under the
Endangered Species Act] of a hapless toad that, for reasons of its
own, lives its entire life in California constitutes regulating
‘Commerce among the several States’ ” (ellipsis omitted)).

															The Court’s opinion today curbs a serious
expansion of federal authority that has simultaneously degraded
States’ authority and diverted the Federal Government from its
important role as guarantor of the Nation’s great commercial water
highways into something resembling “a local zoning board.” Rapanos , 547 U. S., at 738 (plurality opinion). But,
wetlands are just the beginning of the problems raised by the
agencies’ assertion of jurisdiction in this case. Despite our clear
guidance in SWANCC that the CWA extends only to the limits
of Congress’ 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’ commerce power. But,
while not all environmental statutes are so textually limited,
Congress chose to tether federal jurisdiction under the CWA to its
traditional authority over navigable waters. The EPA and the Corps
must respect that decision. Notes 1 Courts had long carefully
enforced limits on Congress’ navigation authority in prosecutions
brought under the Act of July 7, 1838, ch. 191, 5Stat. 304
(Steamboat Acts of 1838), which prohibited the transportation of
goods “upon the bays, lakes, rivers, or other navigable waters of
the United States” 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
“employment ha[d] no other than a remote connection with ‘commerce
or navigation among the several states;’ no more connection than
has the farmer who cultivates hemp, tobacco or cotton for a market
in other states—the miner who digs and smelts lead—the manufacturer
who manufactures for the same market, or the traveler who intends
purchasing any of these articles”). 2 The early 20th century
also saw the Reclamation Act of 1902, ch. 1093, 32Stat. 388;
Federal Power Act, ch. 285, 41Stat. 1063; Oil Pollution Act, 1924,
ch. 316, 43Stat. 604; and Flood Control Act of 1936, ch. 688,
49Stat. 1570, all of which relied on navigability. See Walston
724–726. Although the Acts were also designed to achieve incidental
benefits such as pollution control, Congress located its authority
in preserving navigation. Ibid. 3 The English rule tied
navigability to the ebb and flow of the tides, but began 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, 454–457 (1852);
see also Economy Light & Power Co. v. United
States , 256 U.S.
113 , 120 (1921) (“[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 ”). 4 Leovy v. United
States also reflected the law’s longstanding hostility to
wetlands: “If there is any fact which may be supposed to be known
by everybody, 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.” 177 U. S., at 636. Traditionally,
the only time wetlands were the subject of federal legislation was
to aid the States in draining them. See, e.g. , Swamp Land
Act of 1850, ch. 84, 9Stat. 519; see also S. Johnson, Wetlands Law:
A Course Source 25–26 (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 10–14
(1994). 5 In fact, when Congress
has wished to depart from this traditional meaning, it has done so
expressly, as in parts of the Federal Power Act, §23, 41Stat. 1075
(requiring approval for dam construction “across, along, over, or
in any stream or part thereof, other than those defined herein this
chapter as navigable waters”); the Federal Water Pollution Control
Act, ch. 758, §2(a), 62Stat. 1155 (as amended, 86Stat. 816)
(authorizing federal-state cooperation to abate water pollution in
“interstate waters” and their tributaries); and the Water Quality
Act of 1965, 79Stat. 905–906 (authorizing grants to research
abatement of pollution into “any waters”); see Hardy Salt
Co. v. Southern Pacific Transp. Co. , 501 F.2d 1156, 1168
(CA10 1974) (noting that Congress only departs from the expanded Daniel Ball test by using “clear and explicit language,” as
it did in parts of the Federal Power Act). 6 Section 404 authorizes
the Corps to “issue permits . . . for the discharge of
dredged or fill material into the navigable waters at specified
disposal sites.” 33 U. S. C. §§1344(a), (d). 7 To 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 an enforcement
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’s holding in United States v. Appalachian
Elec. Power Co ., 311 U.S.
377 (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 capacity in order to avoid exceeding Congress’
navigation authority. See supra , at 8–13. 8 The historical context
demonstrates that it was the Corps’ failure to regulate to the full
extent of Congress’ navigation power, not its commerce power
generally, that led to the enactment of the CWA. See Albrecht &
Nickelsburg, 11047 (explaining that the CWA’s legislative history
is better interpreted “as 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 ”); see also S. Bodine, Examining the Term “Waters of the
United States” in Its Historical Context, C. Boyden Gray Center for
the Study of the Administrative State Policy Brief No. 4
(2022). 9 Section 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
“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 . . . , including wetlands adjacent
thereto).” 91Stat. 1601 (codified, as amended, at 33
U. S. C. §1344(g)). This provision thus authorizes States
to establish their own permit programs over a discrete class 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 123–124. Some have asserted that this
nonjurisdictional provision—the function of which in the statute is
to expand state authority—signals that Congress actually
intended an unprecedented expansion of federal authority over the
States. Rapanos v. United States , 547 U.S.
715 , 805–806 (2006) (Stevens, J., dissenting); see also post , at 3–5 (Kavanaugh, J., concurring in judgment); post , at 1–3 (Kagan, J., concurring in judgment). But, as
the Court explains, not only is §404(g) not the relevant
definitional provision, its reference to “wetlands” is perfectly
consistent with the commonsense recognition that some wetlands are
indistinguishable from navigable waters with which they have
continuous surface connections. Ante , at 18–22, 27. To infer
Congress’ 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 than a
negative inference from a parenthetical in a subsection that
preserves state authority, is counterintuitive to say the
least. 10 Further scholarship notes that the
term “commerce” as originallyunderstood “was bound tightly with the Lex Mercatoria and the sort of activities engaged in by
merchants: buying and selling products made by others (and
sometimes land), associated finance and financial instruments,
navigation and other carriage, and intercourse across
jurisdictional lines.” R. Natelson, The Legal Meaning of “Commerce”
in the Commerce Clause, 80 St. John’s L. Rev. 789, 845 (2006).
This “did not include agriculture, manufacturing, mining, malum
in se crime, or land use. Nor did it include activities that
merely ‘substantially affected’ commerce; on the contrary, the
cases included wording explicitly distinguishing such activities
from commerce.” Ibid. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–454

															_________________

															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, “I would stick to the
text.” Post , at 14 (opinion concurring in judgment). As he
explains in the principal concurrence, our normal method of
construing statutes identifies which wetlands the Clean Water Act
covers—and the answer provided exceeds what the Court says today.
Because the Act covers “the waters of the United States,” and those
waters “includ[e]” all wetlands “adjacent” to other covered waters,
the Act extends to those “adjacent” wetlands. 33 U. S. C.
§§1362(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 4–5 (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—as the EPA and Army Corps have recognized for
almost half a century—that a wetland comes within the Act if (i) it
is “contiguous 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.” Post ,
at 14 (emphasis in original). In excluding all the wetlands in
category (ii), the majority’s “ ‘continuous surface
connection’ test disregards the ordinary meaning of
‘adjacent.’ ” Post , at 9. The majority thus alters—more
precisely, narrows the scope of—the 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 “crisis
proportions.” 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’s
Cuyahoga River had “burst into flames, fueled by oil and other
industrial wastes.” 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 5–6. So Congress embarked on what
this Court once understood as a “total restructuring and complete
rewriting” of existing water pollution law. Milwaukee v. Illinois , 451 U.S.
304 , 317 (1981) (internal quotation marks omitted). The new Act
established “a self-consciously comprehensive” and “all-
encompassing program of water pollution regulation.” Id. , at
318–319. Or said a bit differently, the Act created a program broad
enough to achieve the codified objective of “restor[ing] and
maintain[ing] the chemical, physical, and biological integrity of
the Nation’s waters.” §1251(a). If you’ve lately swum in a lake,
happily drunk a glass of water straight from the tap, or sat down
to a good fish dinner, you can appreciate what the law has
accomplished.

															Vital to the Clean Water Act’s project is the
protection of wetlands—both those contiguous to covered waters and
others nearby. As this Court (again, formerly) recognized, wetlands
“serve to filter and purify water draining into adjacent bodies of
water, and to slow the flow of surface runoff into lakes, rivers,
and streams.” United States v. Riverside Bayview Homes,
Inc. , 474 U.S.
121 , 134 (1985) (citation omitted). Wetlands thus “function as
integral parts of the aquatic environment”—protecting neighboring
water if themselves 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 also when they are separated from it
by a natural or artificial barrier—say, a berm or dune or dike or
levee. See post , at 12–13 (giving examples). Those barriers,
as he says, “do not block all water flow,” and in fact are usually
evidence of a significant connection between the wetland and the
water. Ibid. Small wonder, then, that the Act—as written,
rather than as read today—covers wetlands with that kind of
connection. Congress chose just the word needed to meet the Act’s
objective. A wetland is protected when it is “adjacent” to a
covered water—not merely when it is “adjoining” or “contiguous” or
“touching,” or (in the majority’s favorite made-up locution) has a
“continuous surface connection.” See, e.g. , ante , at
27.

															Today’s majority, though, believes Congress went
too far. In the majority’s view, the Act imposes unjustifiably
“crushing consequences” for violations of its terms. Ante ,
at 3. And many of those violations, it thinks, are of no real
concern, arising from “mundane” land-use conduct “like moving
dirt.” Ante , at 13. Congress, the majority scolds, has
unleashed the EPA to regulate “swimming pools[ ] and puddles,”
wreaking untold havoc on “a staggering array of landowners.” 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’s too-ambitious program of pollution control.

															So the majority shelves the usual rules of
interpretation—reading the text, determining what the words used
there mean, and applying that ordinary understanding even if it
conflicts with judges’ policy preferences. The majority’s first
pass through the statute is, as Justice Kavanaugh says,
“unorthodox.” Post , at 9. “A minus B, which includes C”? 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 “tells
us that at least some wetlands must qualify as ‘waters of the
United States.’ ” Ante , at 18–19. More, the statute
tells us what those “some wetlands” are: the “adjacent” ones. And
again, as Justice Kavanaugh shows, “adjacent” does not mean
adjoining. See post , at 4–6; supra , at 1–2. So the
majority proceeds to its back-up plan. It relies as well on a
judicially manufactured clear-statement rule. When Congress (so
says the majority) exercises power “over private
property”—particularly, over “land and water use”—it must adopt
“exceedingly clear language.” Ante , at 23 (internal
quotation marks omitted). There is, in other words, a thumb on the
scale for property owners—no 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’s existence, the
majority still would be wrong. As Justice Kavanaugh notes,
clear-statement rules operate (when they operate) to resolve
problems 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: “Adjacent” 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—which is to say, as clear as language gets. And so a
clear-statement rule must leave it alone. The majority concludes
otherwise because it is using its thumb not to resolve ambiguity or
clarify vagueness, but instead to “correct” breadth. Those paying
attention have seen this move before—actually, just last Term. In
another case of environmental regulation (involving clean air), the
Court invoked another clear-statement rule (the so-called major
questions doctrine) to diminish another plainly expansive term
(“system of emission reduction”). See West Virginia v. EPA , 597 U. S. ___, ___, ___ (2022) (slip op., at 2,
19). “[C]ontra the majority,” I said then, “a broad term is not the
same thing as a ‘vague’ one.” 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
to deal with statutory vagueness or ambiguity. But a court may not
rewrite Congress’s plain instructions because they go further than
preferred. That is what the majority does today in finding that the
Clean Water Act excludes many wetlands (clearly) “adjacent” to
covered waters.

															And still more fundamentally, why ever have a
thumb on the scale against the Clean Water Act’s protections? The
majority first invokes federalism. See ante , at 23–24. But
as Justice Kavanaugh observes, “the Federal Government has long
regulated the waters of the United States, including adjacent
wetlands.” Post , at 11. The majority next raises the specter
of criminal penalties for “indeterminate” conduct. See ante ,
at 24–25. But there is no peculiar indeterminacy in saying—as
regulators have said for nearly a half century—that a wetland is
covered both when it touches a covered water and when
it is separated by only a dike, berm, dune, or similar barrier.
(That standard is in fact more definite than a host of criminal
laws I could name.) Today’s pop-up clear-statement rule is
explicable only as a reflexive response to Congress’s enactment of
an ambitious scheme of environmental regulation. It is an effort to
cabin the anti-pollution actions Congress thought appropriate. See ante , at 23 (complaining about Congress’s protection of
“vast” and “staggering” “additional area”). And that, too, recalls
last Term, when I remarked on special canons “magically appearing
as get-out-of-text-free cards” to stop the EPA from taking the
measures Congress told it to. See West Virginia , 597
U. S., at ___–___ (dissenting opinion) (slip op., at 28–29).
There, the majority’s 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’s waters clean by regulating adjacent wetlands. The vice in
both instances is the same: the Court’s appointment of itself as
the national decision-maker on environmental policy.

															So I’ll conclude, sadly, by repeating what I
wrote last year, with the replacement of only a single word. “[T]he
Court substitutes its own ideas about policymaking for Congress’s.
The Court will not allow the Clean [Water] Act to work as Congress
instructed. The Court, rather than Congress, will decide how much
regulation is too much.” Id. , at ___ (slip op., at 32).
Because that is not how I think our Government should work—more,
because it is not how the Constitution thinks our Government should
work—I respectfully concur in the judgment only. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–454

															_________________

															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 dumping
dredged or fill material without a permit into the “waters of the
United States.” 33 U. S. C. §§1311(a), 1344(a), 1362. The
“waters of the United States” include wetlands that are “adjacent”
to waters covered by the Act—for example, wetlands that are
adjacent to covered rivers or lakes. §§1344(g), 1362(7). The
question in this case is whether the wetlands on the Sacketts’
residential property are adjacent to covered waters and therefore
covered under the Act.

															The Ninth Circuit held that the wetlands on the
Sacketts’ property are covered by the Clean Water Act because, as
relevant here, the wetlands have a “significant nexus” to covered
waters nearby. 8 F. 4th 1075, 1093 (2021). The Court today reverses
the Ninth Circuit’s judgment.

															I agree with the Court’s reversal of the Ninth
Circuit. In particular, I agree with the Court’s decision not to
adopt the “significant nexus” test for determining whether a
wetland is covered under the Act. And I agree with the Court’s
bottom-line judgment that the wetlands on the Sacketts’ property
are not covered by the Act and are therefore not subject to
permitting requirements.

															I write separately because I respectfully
disagree with the Court’s 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 “continuous
surface connection” to waters of the United States—that is, when
the wetlands are “adjoining” covered waters. Ante, at 20, 22
(internal quotation marks omitted). In my view, the Court’s
“continuous surface connection” test departs from the statutory
text, from 45 years of consistent agency practice, and from this
Court’s precedents. The Court’s test narrows the Clean Water Act’s
coverage of “adjacent” wetlands to mean only “adjoining” wetlands.
But “adjacent” and “adjoining” 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 a covered water, and (ii) wetlands separated from
a covered water only by a man-made dike or barrier, natural river
berm, beach dune, or the like. By narrowing the Act’s coverage of
wetlands to only adjoining wetlands, the Court’s new test will
leave some long-regulated adjacent wetlands no longer covered by
the Clean Water Act, with significant repercussions for water
quality and flood control throughout the United States. Therefore,
I respectfully concur only in the Court’s judgment.

															I

															The Clean Water Act generally prohibits
dumping a “pollutant”—including dredged or fill material—into
“navigable waters” without a permit. 33 U. S. C.
§§1311(a), 1344(a), 1362. The Act defines “navigable waters” as
“the waters of the United States, including the territorial seas.”
§1362(7).

															As the Court today ultimately agrees, see ante, at 19, and the Sacketts acknowledge, see Tr. of Oral
Arg. 7–8, 33–34, 56–57, the statutory term “waters of the United
States” covers wetlands “adjacent” to waters of the United
States—for example, wetlands adjacent to a river or lake that is
itself a water of the United States. 33 U. S. C.
§1344(g).

															As enacted in 1972, the Clean Water Act
protected “the waters of the United States.” §§1311(a), 1362(7),
1362(12). In 1975, the Army Corps interpreted “waters of the United
States” to include wetlands “adjacent to other navigable waters.”
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, and not the States, may issue Clean Water
Act permits for dumping dredged or fill material into certain
“waters of the United States,” “including wetlands adjacent” to
those covered waters. Clean Water Act, 91Stat. 1601; 33
U. S. C. §1344(g). In that 1977 Act, Congress thus
expressly recognized “adjacent wetlands” as “waters of the United
States.”

															Interpreting the text of the Act as amended in
1977, this Court has long held that the Act covers “adjacent”
wetlands. See United States v. Riverside Bayview Homes, Inc. , 474 U.S.
121 , 134–135, 138 (1985) (“Congress expressly stated that the
term ‘waters’ included adjacent wetlands.”); see also Rapanos v. United States , 547
U.S. 715 , 742 (2006) (plurality opinion) (wetlands that “are
‘adjacent to’ ” waters of the United States are “covered by
the Act”); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers , 531 U.S.
159 , 167, 172 (2001) (recognizing “Congress’ unequivocal”
“approval of, the Corps’ regulations interpreting the [Act] to
cover wetlands adjacent to navigable waters”). The Court has also
ruled that the Act’s coverage of adjacent wetlands does not extend
to “isolated” wetlands. Id ., at 168–172.

															So the question here becomes the meaning of
“adjacent” wetlands under the Clean Water Act. As a matter of
ordinary meaning and longstanding agency practice, a wetland is
“adjacent” to a covered water (i) if the wetland is adjoining—that
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, natural river berm, beach dune, or the like.

															The Court and I agree that wetlands in the first
category—that is, wetlands adjoining a covered water—are covered as
adjacent wetlands. Ante, at 19–22. But the Court and I
disagree about the second category—that 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 because
those wetlands do not have a continuous surface connection to a
covered water—in other words, those wetlands are not adjoining the
covered water. I disagree because the statutory text (“adjacent”)
does not require a continuous surface connection between those
wetlands and covered waters.

															The ordinary meaning of the term “adjacent” has
not changed since Congress amended the Clean Water Act in 1977 to
expressly cover “wetlands adjacent” to waters of the United States.
91Stat. 1601; 33 U. S. C. §1344(g). Then as now,
“adjacent” means lying near or close to, neighboring, or not widely
separated. Indeed, the definitions of “adjacent” are notably
explicit that two things need not touch each other in order to be
adjacent. “Adjacent” includes “adjoining” but is not limited to
“adjoining.” See, e.g., Black’s Law Dictionary 62 (rev. 4th
ed. 1968) (defining “adjacent” as “Lying near or close to;
sometimes, contiguous; neighboring; . . . may not
actually touch”); Black’s Law Dictionary 50 (11th ed. 2019)
(defining “adjacent” as “Lying near or close to, but not
necessarily touching”); see also, e.g., Webster’s Third New
International Dictionary 26 (1976) (defining “adjacent” as “to lie
near, border on”; “not distant or far off ”; “nearby but not
touching”).

															By contrast to the Clean Water Act’s express
inclusion of “adjacent” wetlands, other provisions of the Act use
the narrower term “adjoining.” Compare 33 U. S. C.
§1344(g) with §§1321(b)–(c) (“adjoining shorelines” and “adjoining
shorelines to the navigable waters”); §1346(c) (“land adjoining the
coastal recreation waters”); see also §1254(n)(4) (“estuary”
includes certain bodies of water “having unimpaired natural
connection with open sea”); §2802(5) (“ ‘coastal
waters’ ” includes wetlands “having unimpaired connection with
the open sea up to the head of tidal influence”). The difference in
those two terms is critical to this case. Two objects are
“adjoining” if they “are so joined or united to each other that no
third object intervenes.” 1968 Black’s 62 (comparing “adjacent”
with “adjoining”); see ibid. (“Adjoining” means “touching or
contiguous, as distinguished from lying near to or adjacent”); see
also Black’s Law Dictionary 38–39 (5th ed. 1979) (same); Webster’s
Third 26–27 (similar). As applied to wetlands, a marsh is adjacent
to a river even if separated by a levee, just as your neighbor’s
house is adjacent to your house 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 “adjacent” and
“adjoining” and has held that “adjacent” is broader than “adjoining
or actually contiguous.” 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 “public lands adjacent” to a railroad right of way. Id., at 526, n. 1, 530. The Court held that timber
could be taken from “adjacent” sections of land that were not “contiguous to or actually touching” the right of way. Id. , at 538. The Court explained that if “the word
‘adjoining’ had been used instead of ‘adjacent,’ ” a railroad
could not have taken the relevant timber. Ibid. In short, the term “adjacent” is broader than
“adjoining” and does not require that two objects actually touch.
We must presume that Congress used the term “adjacent” wetlands in
1977 to convey a different meaning than “adjoining” wetlands. See Russello v. United States , 464 U.S.
16 , 23 (1983).

															II

															Longstanding agency practice reinforces the
ordinary meaning of adjacency and demonstrates, contrary to the
Court’s conclusion today, that the term “adjacent” is broader than
“adjoining.”

															After the Act was passed in 1972, a key question
quickly arose: Did “waters of the United States” include wetlands?
By 1975, the Army Corps concluded that the term “waters of the
United States” included “adjacent” wetlands. 40 Fed. Reg. 31324. In
1977, Congress itself made clear that “adjacent” wetlands were
covered by the Act by amending the Act and enacting §1344(g).
91Stat. 1601.

															Since 1977, when Congress explicitly included
“adjacent” wetlands within the Act’s coverage, the Army Corps has
adopted a variety of interpretations of its authority over those
wetlands—some more expansive and others less expansive. But
throughout those 45 years and across all eight Presidential
administrations, the Army Corps has always included in the
definition of “adjacent wetlands” not only 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.

															bullet20In 1977 and 1980, under President
Carter, the Army Corps and EPA defined “adjacent” wetlands as
including wetlands “separated from other waters of the United
States by man-made dikes or barriers, natural river berms, beach
dunes and the like.” 42 Fed. Reg. 37144; see 45 Fed. Reg.
85345.

															bullet20In 1986, under President Reagan, the
Army Corps adopted a new regulatory provision defining “waters of
the United States” and reaffirmed that “adjacent” wetlands include
wetlands “separated from other waters of the United States by
man-made dikes or barriers, natural river berms, beach dunes and
the like.” 51 Fed. Reg. 41210, 41251.

															bullet20From 1986 until 2015, under Presidents
Reagan, George H. W. Bush, Clinton, George W. Bush, and Obama,
the regulations continued to cover wetlands “separated from other
waters of the United States by man-made dikes or barriers, natural
river berms, beach dunes and the like.” See 33 CFR §328.3(c)
(1991); 40 CFR §230.3(b) (1991); 33 CFR §328.3(c) (1998); 40 CFR
§230.3(b) (1998); 33 CFR §328.3(c) (2005); 40 CFR §230.3(b) (2005);
33 CFR §328.3(c) (2010); 40 CFR §230.3(b) (2010).

															bullet20In 2015, under President Obama, the
Army Corps and EPA promulgated a new rule, which again specified
that “adjacent” wetlands include wetlands “separated by constructed
dikes or barriers, natural river berms, beach dunes, and the like.”
80 Fed. Reg. 37105, 37116.

															bullet20In 2019 and 2020, under President
Trump, the Army Corps and EPA repealed the 2015 rule and issued a
new rule. But even following the repeal and new rule, adjacent
wetlands included wetlands that are “physically separated” from
certain covered waters “only by a natural berm, bank, dune, or
similar natural feature” or “only by an artificial dike, barrier,
or similar artificial 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.” 85 Fed. Reg. 22338, 22340
(2020).

															bullet20In 2023, under President Biden, the Army
Corps and EPA once again issued a new rule that defined “adjacent”
wetlands to include wetlands “separated from other waters of the
United States by man-made dikes or barriers, natural river berms,
beach dunes, and the like.” 88 Fed. Reg. 3143–3144.

															That longstanding and consistent agency
interpretation reflects and reinforces the ordinary meaning of the
statute. The eight administrations since 1977 have maintained
dramatically different views of how to regulate the environment,
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
the Clean Water Act’s 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 “adjacent” wetlands. And
adjacent wetlands is a broader category than adjoining wetlands.
But instead of adhering to the ordinary meaning of “adjacent”
wetlands, to the 45 years of consistent agency practice, and to
this Court’s precedents, the Court today adopts a test under which
a wetland is covered only if the wetland has a “continuous surface
connection” to a covered water—in other words, if it adjoins a
covered water. Ante, at 22 (internal quotation marks
omitted). The Court says that the wetland and the covered water
must be “indistinguishable” from one another—in other words, there
must be no “clear demarcation” between wetlands and covered waters. Ante, at 21 (internal quotation marks omitted).

															The Court’s “continuous surface connection” test
disregards the ordinary meaning of “adjacent.” The Court’s mistake
is straightforward: The Court essentially reads “adjacent” to mean
“adjoining.” As a result, the Court excludes wetlands that the text
of the Clean Water Act covers—and that the Act since 1977 has always been interpreted to cover.

															In support of its narrower “continuous surface
connection” interpretation of covered wetlands, the Court
emphasizes that the 1972 Act’s overarching statutory term is
“waters of the United States.” Ante, at 19. And the Court
suggests that the term “waters of the United States” cannot be
interpreted to cover “adjacent wetlands” but only “adjoining
wetlands.” See ante, at 19–22. But in 1977, Congress itself
expressly made clear that the “waters of the United States” include
“adjacent” wetlands. 91Stat. 1601. And Congress would not have used
the word “adjacent” in 1977 if Congress actually meant “adjoining,”
particularly because Congress used the word “adjoining” in several
other places in the Clean Water Act. 33 U. S. C.
§§1321(b)–(c), 1346(c); see also §§1254(n)(4), 2802(5).

															To bolster its unorthodox statutory
interpretation, the Court resorts to a formula: “A minus B, which
includes C.” Ante , at 19. That just seems to be a fancier
way of arguing (against all indications of ordinary meaning) that
“adjacent” means “adjoining.” But again the Court is imposing a
restriction nowhere to be found in the text. In the end, the Court
has no good answer for why Congress used the term “adjacent”
instead of “adjoining” when Congress enacted §1344(g) in
1977.[ 1 ]

															Recall again how the 1977 Act came about. In
1975, the Army Corps concluded that the 1972 Act’s coverage of
“waters of the United States” included “adjacent” wetlands. 40 Fed.
Reg. 31324. Then in 1977, Congress adopted a new permitting program
for a category of “waters of the United States.” Congress allocated
to the Federal Government exclusive authority to issue Clean Water
Act permits for dumping dredged or fill material into certain
“waters of the United States,” “including wetlands adjacent
thereto.” 91Stat. 1601. Through that statutory text, Congress made
clear its understanding that “waters of the United States” included
“adjacent” wetlands—and indeed, Congress designed important
federal-state permitting authorities around that precise
understanding. Congress’s 1977 amendment did not “merely” express
“an opinion” about the meaning of the Clean Water Act; rather, it
reflected what Congress understood “its own prior acts to mean.” Bell v. New Jersey , 461 U.S.
773 , 785, n. 12 (1983) (internal quotation marks omitted).

															Moreover, Congress’s 1977 decision was no
accident. As this Court has previously recognized, “the scope of
the Corps’ asserted jurisdiction over wetlands”—including the
Corps’ decision to cover adjacent wetlands—“was specifically
brought to Congress’ attention” in 1977, “and Congress rejected
measures designed to curb the Corps’ jurisdiction.” United
States v. Riverside Bayview Homes, Inc. , 474 U.S.
121 , 137 (1985). Subsequently, this Court has recognized that
Congress’s 1977 amendment made clear that the Act “cover[s]
wetlands adjacent to navigable waters.” 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 (“Congress expressly stated that the term ‘waters’ included
adjacent wetlands”).

															Not surprisingly, in the years since 1977, no
one has seriously disputed that the Act covers adjacent wetlands.
And in light of the text of the Act, eight consecutive Presidential
administrations have recognized that the Act covers adjacent
wetlands and that adjacent wetlands include more than simply
adjoining wetlands. The Court’s analysis today therefore seems
stuck in a bit of a time warp—relitigating an issue that Congress
settled in 1977 and that this Court has long treated as settled:
The Act covers adjacent wetlands. By adopting a test that
substitutes “adjoining” for “adjacent,” 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 regulated private property rights. See ante ,
at 23–25; see also Solid Waste Agency of Northern Cook Cty .,
531 U. S., at 173–174. To begin with, the Federal Government has
long regulated the waters of the United States, including adjacent
wetlands.

															In any event, the decisive point here is that
the term “adjacent” in this statute is unambiguously broader than
the term “adjoining.” On that critical interpretive question, there
is no ambiguity. We should not create ambiguity where none exists.
And we may not rewrite “adjacent” to mean the same thing as
“adjoining,” as the Court does today.

															Finally, contrary to the Court’s suggestion
otherwise, the analysis in this separate opinion centers on the
“operative” text, “waters of the United States.” Ante, at
27. To recap: The 1972 Act covered “waters of the United States.”
In 1977, when Congress allocated permitting authority, Congress
expressly included “adjacent” wetlands within the “waters of the
United States.” Since then, the Executive Branch and this Court
have recognized that “waters of the United States” covers
“adjacent” wetlands. Based on the text of the statute, as well as
45 years of consistent agency practice and this Court’s precedents,
I respectfully disagree with the Court’s decision to interpret
“waters of the United States” to include only adjoining wetlands
and not adjacent wetlands.

															IV

															The difference between “adjacent” and
“adjoining” in this context is not merely semantic or academic. The
Court’s rewriting of “adjacent” to mean “adjoining” will matter a
great deal in the real world. In particular, the Court’s new and
overly narrow test may leave long-regulated and
long-accepted-to-be-regulable wetlands suddenly beyond the scope of
the agencies’ regulatory authority, with negative consequences for
waters of the United States. For example, the Mississippi River
features an extensive levee system to prevent flooding. Under the
Court’s “continuous surface connection” 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) the bay and its covered tributaries. See id ., at 35. Those are just two of many examples of how the
Court’s overly narrow view of the Clean Water Act will have
concrete impact.

															As those examples reveal, there is a good reason
why Congress 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. 22307; 88 Fed. Reg. 3095, 3118. Similarly, artificial
barriers 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 of berms or
barriers, for example, still play an important role in protecting
neighboring and downstream waters, including by filtering
pollutants, storing water, and providing flood control. See 88 Fed.
Reg. 3118; 33 CFR §320.4(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 water quality and flood control in many of the same ways
that adjoining wetlands can.

															The Court’s erroneous test not only will create
real-world consequences for the waters of the United States, but
also is sufficiently novel and vague (at least as a single
standalone test) that it may create regulatory uncertainty for the
Federal Government, the States, and regulated parties. As the
Federal Government suggests, the continuous surface connection test
raises “a host of thorny questions” and will lead to “potentially
arbitrary results.” Brief for Respondents 29. For example, how
difficult does it have to be to discern the boundary between a
water and a wetland for the wetland to be covered by the Clean
Water Act? How does that test apply to the many kinds of wetlands
that typically do not have a surface water connection to a covered
water year-round—for example, wetlands and waters that are
connected for much of the year but not in the summer when they dry
up to some extent? How “temporary” do “interruptions in surface
connection” have to be for wetlands to still be covered? Ante, at 21. How does the test operate in areas where
storms, floods, and erosion frequently shift or breach natural
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 from a water by an artificial barrier
constructed illegally , see ante, at 21–22,
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’s atextual test—rewriting
“adjacent” to mean “adjoining”—will 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 key statutory term is “adjacent” and
that adjacent wetlands is a broader category than adjoining
wetlands. To be faithful to the statutory text, we cannot interpret
“adjacent” wetlands to be the same thing as “adjoining”
wetlands.

															*  *  *

															In sum, I agree with the Court’s decision not
to adopt the “significant nexus” test for adjacent wetlands. I
respectfully disagree, however, with the Court’s new “continuous
surface connection” test. In my view, the Court’s new test is
overly narrow and inconsistent with the Act’s coverage of adjacent
wetlands. The Act covers adjacent wetlands, and a wetland is
“adjacent” 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,
natural river berm, beach dune, or the like. The wetlands on the
Sacketts’ property do not fall into either of those categories and
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 concur only in the Court’s
judgment. Notes 1 Perhaps recognizing the
difficulty of reading the Act to mean “adjoining” when it actually
says “adjacent,” the Court at one point suggests that “adjoining”
is equivalent to “adjacent.” Ante, at 19–20. As a matter of
ordinary meaning, as explained at length above, that is incorrect.
Adjoining wetlands are a subset of adjacent wetlands, not the whole
set of adjacent wetlands.