Rapanos v. United States

RAPANOS UNITED STATES et v. al.

No. 04-1034. Argued February 2006 Decided June 2006* *Together 04-1384, with No. Army Carabell et al. v. United States al., Engineers et also on certiorari to the court. same Hopper

M. Reed cause for petitioners argued Robin L. Rivett. him on briefs No. 04-1034. With was Stoepker Timothy A. the cause for petitioners argued Ar- With him on the briefs were Dennis W. No. 04-1384. R. cher and Paul Bernard.

Solicitor General Clement the cause for respond argued the briefs were Assistant him ents both cases. With on Deputy Attorney Wooldridge, General Solicitor General Hungar, Goldman, Ellen J. Stewart, Malcolm L. S. Greer † Durkee, Kim, Todd S. and Katherine W.Hazard. amici †Briefs were for the curiae urging reversal in both cases filed of Alaska, W. Marquez, State of Alaska et al. David Attorney General of by Baker, T. Attorneys Gen

and Ruth Hamilton Heese John and Assistant Walston, Utah, Shurtleff, E. Mark eral, Attorney General of Roderick Martin, W. and Daniel Guy Jeffrey Kightlinger, Birmingham, R. Thomas and of Court announced the judgment Scalia Justice an in which delivered opinion, Justice, The Chief Justice and join. Thomas, Alito Justice wet- John A. backfilled Rapanos April petitioner he owned and lands on a of land Michigan parcel Hentschke; by Timothy S. S. Farm Bureau Federation for the American Llewel Bishop; Sayre Thomas for American by Petroleum Institute Jr.; Colleli, lyn, Harry M. J. Ng, Ralph and for the Attainable Housing Rued; Lynch; Timothy Sebastian by by Alliance for the Institute Cato for the for Jurisprudence by Claremont Institute Center Constitutional III; John G. Eastman and Edwin Meese CropLife by for America al. et Schwartz; Richard E. for the Foundation for Environmental and Economic Duncan, Virginia Albrecht, S. Deidre G. J. Progress et al. by David De- Holmen, Conrad, Pippo, Ralph Sarwal; W. Robin S. D. Amar and for the Pearce; J. Home Builders Association of Michael by Central Arizona for Bauman; the International Council of Shopping Centers et al. Gus by for the Mountain Perry Foundation William Legal States Pendley; for the by National of Association Home Builders by Duane J. Desiderio and Thomas Ward; J. Stone, for the National Sand and Gravel al. by Association et Liebesman; Lawrence R. et al. Carter Phillips Homes, Inc., for G. by Pulte Kinnaird; Stephen B. and for the Western Coalition of by Arid States S. Briscoe; Lawrence Bazel and John Duncan, Jr., for J. Thomas by John Jackson; C. Malamut, and for Michael E. by Charles R. Johnson al. et Andrew R. Grainger, Newhouse, Martin J. S. Martin Kaufman. and amici curiae of

Briefs in both urging affirmance eases were filed for the Spitzer, Eliot State of New York et al. by York, Attorney General of New J. Halligan, Lehner, Smirlock, Caitlin H. General, Solicitor Peter Daniel Gutman, General, Benjamin N. Deputy Solicitor Assistant Solicitor Gen- Srolovic, eral, Lemuel M. General, Michael A. Attorney Assistant Cox, Attorney L. Casey, Thomas Michigan, General of Solicitor Gen- Shinkman, eral, Susan Margaret Murphy, O. Attorneys Terry respective General their Goddard of jurisdictions as follows: Arizona, Mike Lockyer Beebe of Arkansas, Bill of Richard California, Blumenthal of Carl C. Danberg of Connecticut, J. Delaware, Robert Spagnoletti Crist, Jr., of Columbia, District Charles J. of Florida, of Mark J. Bennett of Hawaii, Madigan Lisa Thomas J. Miller of Illinois, Foti, Iowa, Gregory Jr., D. Stumbo of Kentucky, C. Louisiana, Charles Curran, G. Jr., Steven Rowe of Maine, Joseph J. of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch Jim Hood of Missis- Minnesota, (Jay) Jeremiah W. Missouri, Nixon Mike sippi, Montana, McGrath Ayotte Kelly A. of New Hampshire, Harvey Peter C. of New Patri- Jersey, acres land included 54 of This parcel to develop. sought The nearest body soil conditions. with sometimes-saturated F. 11 to miles 3d away. of was (CA6 2003) I). had informed Regulators (Rapanos “waters of the saturated fields were his Mr. Rapanos not be filled 1362(7), that could States,” United 33 U. S. C. Jim Petro Carolina, Roy Cooper A. Mexico, of cia Madrid New of North Hardy Myers Drew Ohio, Oklahoma, Oregon, of W.A Edmondson of of Carolina, Paul Henry McMaster of South Island, Lynch Patrick of Rhode Rob McKenna Tennessee, Vermont, G.Summers of William H. Sorrell of Wisconsin; of Peggy Lautenschlager A City for the Washington, and Cardozo, Koerner, Hilary J. Melt- New York Michael A. Leonard and by Fox; zer; for I. for the Association of Howard by al. American Rivers et by Timothy State and Interstate Water Pollution Control Administrators Pat- Dowling; J. by et al. Managers for the Association State Wetland Parenteau; rick Jan Goldman- Chesapeake Bay by for the Foundation Carter; M. Unlimited, Inc., Murphy, James Thomas by for Ducks et al. France, S. Seth Kagan; and Neil Institute by for Environmental Law Cohen, Waxman, Carothers; R. P. Louis Leslie and for the National Miti- Strand, by Margaret Cooney, N. John F. and gation Banking Association Gardner; Royal C. Organization for the Western of Resource Councils Tebbutt; A. Charles M. M. Browner et al. Deborah by by et al. for Carol Sivas, Marshall, Gordon; C. Holly Lawrence D. M. and for Jared Diamond Rylander; Jason C. Robert by by et al. for John D. et al. Rep. Dingell Amy Wildermuth; W. Adler and J. by and for Calvin H. Johnson Johnson, pro Mr. se. of amici Plan- curiae were filed in both cases for the American Briefs Stroud; by Nancy ning for the Mackinac Center for Public Association J. Wright; Patrick Policy of Waterfront by the National Association Carroll, Jr.; Edwin T. Francis Froelich Charles Employers by Independent by for the Foundation Legal National Federation Business Gasaway Robert C. Ashley R. Parrish. Perry, Popeo,

Mark A. D. Daniel J. and Paul Kamenar filed a brief for Foundation et al. as amici curiae Washington Legal urging reversal in No. 04-1034. Carter, Jr., filed a Blanding

James Holman TV and Derb S. for the brief amici curiae Ecological Society urging America et affirmance al. as in No. 04-1384. of amici L. curiae were filed No. 04-1384 for Donald Harkins

Briefs by Mark A. Reisdorf; William J. County, Michigan, and for Macomb Richardson.

721 permit. years litiga- without a Twelve of criminal civil and tion ensued. regulation

The burden of those de federal on who would posit fill material in locations denominated the “waters of deciding grant United States” is In not trivial. whether to deny permit, Army Corps Engineers (Corps) a the U. S. of enlightened despot, relying exercises the discretion of an on such as “economics,” “aesthetics,” factors and “recreation,” general, people,” “in the needs and welfare of 33 CFR 320.4(a) (2004).1 § average applicant The an for individual days permit spends completing proc 788 $271,596 and in average applicant permit ess, and the a for nationwide spends days counting mitiga $28,915 313 and of costs —not design changes. Sunding tion or & The Zilberman, Econom Regulation by of Licensing: ies Environmental An Assess Changes Permitting ment of Recent to the Wetland Process, (2002). “[0]ver 42 Natural Resources J. 74-76 bil $1.7 spent year by private public lion each and ob sectors taining permits.” Id., at 81. These costs cannot “impose[s] avoided, be because the Clean Water Act criminal liability,” steep range as well as civil “on a fines, broad ordinary industrial and commercial activities.” Hanousek (2000) States, 1102, 1103 v. United 528 U. S. dis (THOMAS, J., certiorari). senting litigation, from denial of ex In this for ample, backfilling Rapanos his fields, own wet Mr. faced prison months and hundreds of thousands dollars Rapanos, criminal civil and fines. See United States v. (CA6 2000). F. 3d

1In issuing permits, Corps may “[a]ll directs that factors which be proposal relevant to the must be ef including considered the cumulative fects among conservation, economies, aesthetics, thereof: are those general concerns, wetlands, environmental properties, historic fish and wildlife values, hazards, values, use, flood floodplain navigation, land shore erosion accretion, recreation, conservation, water supply quality, energy needs, safety, needs, production, food fiber mineral considera and, tions property ownership general, the needs and welfare of the 320.4(a). people.” against Rápanos proceedings are Mr. enforcement regulation expansion part of federal immense small Act—with- the Clean Water occurred under land use that has during past governing any change in the out statute — decades, last three administrations. five Presidential (EPA) Agency Protection and the Environmental jurisdiction interpreted “the waters over have their swampy acres of 270-to-300million to cover United States” including an of Alaska and half lands in the United States— And that in the lower 48 States. area size of California the juris- just beginning. The has also asserted the was containing virtually any parcel a channel of land diction over narrow, or natural, or broad or conduit—whether man-made permanent ephemeral through or drain- which rainwater or — intermittently age may occasionally view, this flow. or On federally regulated include the States” the “waters of United ripples of sand in desert drains, ditches, storm roadside year, may are cov- and lands that that contain water once a every years. they in- Because ered floodwaters once containing washes, clude the storm sewers and desert land engulf statutory entire States” “waters United fact, the entire land cities and immense arid wastelands. drainage basin, an area of the States lies in some and United furrows the entire sur- endless network of visible channels containing ephemerally rain falls. face, water wherever the Any containing may potentially plot of such a channel land regulated be a “water of the United States.”

I (CWA Act) passed Congress Act the Clean Water objective 1972. The is “to restore and maintain Act’s stated biological integrity physical, chemical, and of Na- 1251(a). § tion’s waters.” Act 86 Stat. 33 U. S. C. recognize, “[i]t policy Congress also states of preserve, responsibilities protect primary rights prevent, pollution, plan of reduce, States and eliminate development (including preserva- and use restoration, enhancement) tion, and of land and resources, and to with consult Administrator the exercise of his author- 1251(b). § ity chapter.” this under principal provisions One of the statute’s is 33 U. S. C. §1311(a), provides discharge any pollutant which “the of by any person discharge pol- be shall unlawful.” of a “The broadly “any any pol- lutant” is defined to include addition of § 1362(12), any point lutant to waters from source,” “pollutant” broadly only is defined to include not tradi- tional “dredged spoil,... but contaminants also solids such as 1362(6). § [and] rock, sand, dirt,” cellar And, most relevant “navigable here, the CWA defines waters” as “the waters 1362(7). § including the United States, the territorial seas.” provides exceptions The Act also prohibition certain to its 1311(a). discharge any pollutant by person.” any “the 1342(a) Section authorizes the Administrator the EPA permit discharge any pollutant, to “issue a for the . . . 1311(a) notwithstanding section of this title.” Section 1344 Secretary Army, acting through authorizes the the Corps, permits discharge dredged to “issue ... for the of or fill navigable specified disposal material into the waters at (d). § 1344(a), discharge “dredged sites.” It is the of or fill pollutants, unlike which, traditional are material” — readily solids that do not wash downstream—that we con- today. sider century prior

For interpreted to the we had the CWA, phrase “navigable waters of the United States” in Act’s predecessor statutes to refer interstate waters are “navigable readily susceptible being in fact” or of rendered (1871); so. Ball, The Daniel 10 see 557, Wall. 563 also Appalachian United Co., 377, States v. Elec. Power 311 U. S. (1940). passage initially 406 After of CWA, adopted judicial this traditional definition for the Act’s term “navigable Reg. waters.” See 39 Fed. codified 209.120(d)(1) § (1974); Agency CFR see also Waste Solid of Army Corps Engineers, Cty. Cook Northern 531 U. S. v. of (SWANCC). (2001) After a District Court enjoined 159, 168 Resources Natural narrow, as too these regulations Defense Callaway, Council, Inc. v. (DC 1975), 392 F. Supp. Fed. See 40 a far broader definition. the Corps adopted (1977). The 42 Fed. (1975); 31324-31325 Reg. Reg. to extend new deliberately sought Corps’ regulations outer to the definition of “the waters of United States” id., 2. 37144, n. limits of commerce See power. Congress’s “the waters The current interpret regulations inter- to traditional include, the United addition States” 328.3(a)(1) in- waters, (2004), § “[a]ll state 33 CFR § wetlands,” 328.3(a)(2); terstate waters interstate including lakes, rivers, such streams other waters as intrastate “[a]ll wet- streams), mudflats, sandflats, intermittent (including lakes, meadows, wet lands, potholes, playa sloughs, prairie or use, or natural destruction degradation ponds, commerce,” interstate which could affect foreign § waters,” 328.3(a)(5); § 328.3(a)(3); “[tributaries [such] (other waters tributaries] “[w]etlands [such] [and 328.3(a)(7). § wetlands),” than waters that are themselves defines those “border- regulation “adjacent” [to], or waters the United ing, contiguous neighboring” 328.3(c). It States. “[w]etlands specifically provides man- from other waters of States by United separated barriers, river berms, made dikes or natural beach dunes Ibid. like are wetlands.’” 'adjacent first S. C. We addressed the 33 U. proper interpretation §1362(7)’s “the of the United States” waters phrase Bayview Homes, Inc., States v. Riverside United 474 U. S. (1985). case a that “was adja- That concerned wetland a “the area charac- water,” cent to because body navigable terized saturated soil conditions and wetland by vegetation extended the beyond boundary respondent’s property Id., see 33 CFR 131; also ... waterway.” navigable 328.3(b). § from water to solid that “the transition Noting

ground necessarily typically abrupt or even an one,” Corps necessarily and that “the point must choose some begins,” which water ends and land 474 U. at 132, we upheld Corps’ interpretation of “the waters of the United “actually abut[ted] States” to include wetlands that on” tra- ditional Id., waters. at 135.

Following Bayview, our decision in Corps Riverside adopted increasingly interpretations regula- broad of its own tions under example, “clarify” Act. For 1986, jurisdiction, Corps reach of its announced the so-called “Migratory purported Bird juris- Rule,” which to extend its “[wjhich any diction to intrastate waters are or would be used migratory as habitat” Reg. birds. 51 Fed. 41217; supra, see also SWANCC, at 163-164. In addition, the Corps interpreted regulations “ephemeral its own to include “drainage streams” and ditches” as “tributaries” that are part of the “waters of the States,” United see 33 CFR §328.3(a)(5),provided they perceptible “ordinary have a high 328.3(e). § water mark” as Reg. defined 65 Fed. (2000). interpretation This extended “the waters of virtually United any States” to land feature over which drainage passes rainwater or and leaves a visible mark— only presence even if “the of litter and debris.” 33 CFR 328.3(e). Accounting See also Report U. S. General Office, Energy Policy, Chairman, Subcommittee on Natural Regulating Resources and Affairs, Committee on Govern- Representatives, ment Reform, House of Waters and Wet- Engineers lands: Needs to Evaluate Its District Determining Office Practices in Jurisdiction, GAO-04- (Feb. 2004) (hereinafter pp. Report), http:// 20-22 GAO (all www.gao.gov/new.items/d04297.pdf Internet materials as visited June 2006, and available in Clerk Court’s case file). upheld Prior to our decision in SWANCC,lower courts application expansive of this definition of “tributaries” to such entities as storm sewers that contained flow to covered during heavy waters rainfall, Eidson, United States v. 726 (CA11 1997), arroyos dry con- 1340-1342

3dF. groundwater through flow of remote waters nected Mining 2d EPA, 765 F. v.Co. “centuries,” Quivira over 1985). (CA10 129 application of the considered the SWANCC,we gravel sand

“Migratory to “an abandoned Bird Rule” Observing that S., 531 U. at 162. pit Illinois.” in northern significant the wetlands “[i]t nexus between was the reading in of the ‘navigable our CWA that informed waters’ added), (emphasis Bayview,” we held 167 id., at Riverside jurisdic Bayview “that the did not establish that Riverside ponds Corps that are extends tion deleted). (emphasis open On the at 168 water,” S., 531 U. “nonnavigable, contrary, intrastate wa isolated, held that we the wetlands at issue Riv ters,” id., which, unlike 171— abu[t] “actually navigable Bayview, wa did not on a erside terway,” included as “waters of 531 U. at 167—were not the United States.” sig-

Following Corps SWANCC, did not our decision nificantly theory jurisdiction revise its of federal under 1344(a). § Corps provided proposed notice of a rule- (2003), making light Reg. SWANCC, 68 Fed. but ultimately published regulations. Be- did not amend its directly tributaries, cause did not address SWANCC they Corps “should continue notified its field staff that jurisdiction navigable to assert over traditional waters . . . (and generally speaking, tributary systems adja- and, their wetlands).” Reg. In addition, cent 68 Fed. 1998. because Bayview, SWANCC did not overrule Riverside “ ” jurisdiction ‘neighboring’ continues to assert over waters their traditional waters and tributaries. Fed. 328.3(c)(2002)). Reg. (quoting 33 CFR SWANCC, Even after courts have continued to lower uphold Corps’ sweeping jurisdiction assertions of over ephemeral exam- channels and drains as “tributaries.” For ple, jurisdictional include courts have held that “tributaries” through approxi “intermittent flow of surface water

mately 2.4 miles of natural streams and manmade ditches 1-64),” (paralleling crossing Treacy under v. Newdunn (CA4 2003); Assoc., 344 F. 407, 3d 410 a ditch” “roadside winding, thirty-two-mile path whose water took “a to the Chesapeake Bay,” Deaton, United States v. 698, 332 F. 3d 702 (CA4 2003);irrigation intermittently ditches and drains that Community connect to covered waters, Assn. Restora Henry Dairy, tion Environment v. Bosma 305 F. 3d of (CA9 2002); Irrigation 954-955 Headwaters, Inc. v. Talent (CA9 (most 2001); Dist., implausibly F. 3d all) arroyos” development the “washes of an “arid site,” located in the through middle of desert, which “water during periods heavy courses . . . rain,” Sono Save Our (CA9 2005).2 ran, Inc. v. Flowers, 408 F. 1113, 1118 3d judicial These constructions of “tributaries” are outli- they Corps’ Rather, ers. reflect the breadth determi- Corps’ practices vary nations the field. The enforcement somewhat from district to district because “the definitions jurisdictional used to deliberately make determinations” are “vague.” Report left GAO 26; id., see also at 22. But dis- Corps trict offices have treated, as “waters typically dry “arroyos, States,” United such land features as might coulees, and washes,” as well as other “channels that given year.” have little They water in a flow Id., at 20-21. applied have also man-made, definition to such intermit- 2We are indebted to the Sonoran court exchange, for a famous from the (Warner 1942), movie Casablanca portrays vividly Bros. which most absurdity of finding the desert with filled waters: “ ‘Captain Renault brought you [Claude “What in name Rains]: heaven’s to Casablanca?” [Humphrey

“‘Rick health. Bogart]: “My I came to Casablanca for the waters.” “ ‘Captain Renault: “The waters? What waters? We’re in the desert.” “ ’” “I 3d, ‘Rick: was misinformed.” 408 F. at 1117. systems,

tently flowing drains tiles, “drain storm features as omitted). (footnote Id., at 24 and culverts.” lower and the “tributaries,” the In addition to “adjacent” wetlands continued define courts have also example, broadly For some after SWANCC. “adjacent” concluded, are that wetlands

district offices have hydrologically they connected if are to covered waters during “through events,” GAO sheet flow storm directional they “100-year floodplain” Report of a 18, or if lie within body they to the are connected is, of water —that years, every by flooding, average, id., on once presence within have concluded that 17, and n. 16. Others tributary automatically “adja a renders wetland 200 feet of jurisdictional. Corps has Id., suc cent” and at 19. And “adjacency” cessfully courts, in the defended such theories of and “isolated” waters wet even after SWANCC’sexcision of coverage. held since Act’s One court has lands from the separated chan that from flood control SWANCC wetlands atop ran maintenance berms, nels 70-foot-wide which “significant because, had a nexus” to covered waters roads, floodplain lay year they alia, inter the 100 of tidal “within Developers, Army v. waters.” Baccarat Fremont LLC (CA9 2005). Engineers, 1150, 1152, 425 F. 3d 1157 today, held, one of cases before us the Sixth Circuit agreement majority “[t]he in “while a courts,” with non-navigable hydrological connection between the navi gable required, waters is no abutment’ re there ‘direct “‘adjacency.’” quirement” F. SWANCC for 376 3d under (2004) II). (Rapanos 629, 639 And even the most insubstan may hydrologic “sig tial a connection be held to constitute distinguished nificant on the nexus.” One court SWANCC ground pits residing in one these “a molecule of water ponds [in SWANCC] could not mix with molecules from other in whereas, it, bodies of the case before water” — currently present in will inev “water molecules the wetlands itably connecting flow towards mix with water from bod- drop landing “[a] is certain

ies,” and rainwater the Site [nearby river].” intermingle with from United Development Supp. 877- Co., States v. Rueth F. 2d (ND 2002). Ind.

II In these four cases, consolidated we consider whether Michigan wetlands, which lie near or man-made ditches eventually empty drains that into traditional waters, constitute “waters States” within the United meaning of the Act. Petitioners Rá- 04-1034, No. panos deposited businesses, their affiliated fill material permit without into three Midland, wetlands on sites near Michigan: “Salzburg site,” site,” the “Hines Road and the Salzburg “Pine River site.” The wetlands at the site are Hoppler connected to a man-made drain, which drains into empties Creek, which flows into the Kawkawlin which River, Saginaw Bay into and Lake Huron. See Brief for United p. States 04-1034, 11; 3d, No. F. 449. something

at the Hines Road site are connected called the Drain,” “Rose which ahas surface connection to the Tittaba- Cert, App. wassee River. to Pet. for 04-1034, in No. pp. A23, B20. And the wetlands at Pine River site have a surface River, connection to the Pine which flowsinto Lake Id., A23-A24, Huron. is not B26. It clear whether the nearby connections between these wetlands and the drains and ditches are or or the intermittent, continuous whether nearby merely drains and ditches contain or occa- continuous sional flows of water. brought proceedings

The United civil States enforcement against Rapanos petitioners. the The found District Court juris- the three described wetlands were “within federal “ they 'adjacent diction” because were the to other waters of ” petitioners United States,’ and liable for of held violations appeal, Id., the CWA at those the sites. at B32-B35. On Appeals United States Court of for the af- Sixth Circuit holding jurisdiction firmed, that there was federal over 780 hydrological “there were because three sites all adja- corresponding and sites three all

connections between at 643. navigable 3d, F. waters.” cent tributaries a were denied Carabells, 04-1384, the in No. Petitioners a trian- located on in a wetland permit deposit fill material to A from Lake St. Clair. gular parcel one mile of land about along drainage wetland, runs one side ditch man-made The separated man-made berm. it a 4-foot-wide from entirely impermeable largely to water and blocks berm is or permit though may drainage it occasional wetland, from empties into ditch to ditch. The ditch another overflow the empties Creek, to which drain, or connects Auvase which Cert, App. Pet. in No. 04- Lake into St. Clair. See pp. 2a-3a. exhausting appeals, After administrative the Carabell petitioners challenging suit Court, filed District regulatory jurisdiction exercise of federal over their site. jurisdiction The District ruled that federal Court there was neighboring because the wetland “is tributaries navigable significant waters has a nexus to ‘waters of Again Id., at United States.’” 49a. Sixth Circuit holding “adjacent” affirmed, that the Carabell wetland was (2004) (Carabell). navigable waters. F. 3d granted cases, We certiorari consolidated the 546 U. S. (2005), to decide whether these wetlands constitute “wa- ters of the if Act, United States” under the whether so, the Act is constitutional.

Ill Rapanos petitioners “naviga- The contend that the terms ble waters” and “waters the United States” in Act must be limited to the definition of traditional The Daniel required Ball, which “waters” be fact, susceptible being 10 Wall, rendered so. See 563. applied But this definition cannot be wholesale to the CWA. phrase “navigable Act uses the waters” as a defined simply term, and the “the definition waters the United

731 1362(7). § provides, 33 U. the Act Moreover, States.” S. C. in certain circumstances, for the substitution of state for fed jurisdiction “navigable eral over waters ... other than those presently susceptible used, waters which are or are use by improvement their natural condition or reasonable transport foreign means to interstate or commerce in ... § cluding 1344(g)(1) (emphasis thereto.” added). provision “naviga This shows that the Act’s term something naviga ble waters” includes more than traditional meaning ble We have twice waters. stated that of “nav igable waters” in the Act is broader than the traditional understanding of term, SWANCC, S., at Riv 167; U. Bayview, empha erside 474 U. We 133.3 have also qualifier “navigable” sized, however, that not devoid of significance, supra, SWANCC, at 172. precise quali-

We need decide the extent to which the “navigable” fiers “of and the United restrict cov- States” erage scope qualifiers, of the Act. Whatever the of these jurisdiction only the CWA authorizes federal over “waters.” 1362(7). § only U. 33 S. C. The natural definition of the term prior subsequent judicial “waters,” our constructions provisions it, clear evidence from other of the statute, this Court’s canons of construction all confirm that “the wa- possibility, One ultimately unsatisfactory, which we find is that “other” intrastate strictly waters covered 33 U. S. C. are 1344(g)(1) traditionally waters that are But navigable. it would be unreasonable interpret “the waters of the only United States” to include all and tradi waters, tional navigable pre both would interstate intrastate. This qualifier serve the import “navigable” traditional the defined waters,” “navigable term depriving qualifier the cost “of traditionally United meaning. States” of all As under definition stood, waters, qualifier the latter excludes intrastate whether Ball, SWANCC, (1871). or not. See Daniel we 10 Wall. “navigable” held that something import. retained of its traditional A fortiori, S., at phrase U. 172. “of in the the United States” defini tion meaning. retains some its traditional 732 1362(7) cannot bear the § in expan- States” of the United

ters it. would that the Corps give sive meaning if the be might arguable The expansive approach ±he as “water of United waters” defined “navigable CWA is States” some of United But “the waters States.” (“the”) definite article The use of the else. thing 1362(7) does (“waters”) shows that number plainly plural form, “the waters” In this refer to water in not general. in streams and to water found refers more “[a]s narrowly rivers, oceans, as features such bodies forming geographical of masses, or as waves lakes,” or “the moving flowing [and] or bodies.” Webster’s such streams floods, up or making 1954) (hereinafter (2d 2882 International ed. New Dictionary Second).4 definition, “the waters of this On Webster’s standing United include only relatively permanent, States” to water of The definition refers or water.5 bodies flowing 4 Kennedy observes, concurring judg in post, (opinion Justice alternative, usage ment), dictionary poetic an somewhat approves that the inundation; have fallen. connoting of as flood or as waters “[a] “waters” waters, wind, Second 2882. ‘The of and rocks.' Shak." Webster’s peril regulating to the statute as wholly interpret It seems to us unreasonable waterways only and “inundations” rather than traditional “floods” —and Shakespearean in the defini- strange suppose Congress had waxed tedious, prosaic, downright of an indeed statute. tion section otherwise obviously intended. commonplace meaning duller and more “relatively we do not necessar By describing permanent,” “waters” as extraordinary streams, rivers, might dry up in exclude or lakes ily circumstances, necessarily exclude sea drought. as We also do such rivers, during some months of which contain continuous flow sonal continuously year during 290-day, as the dry but no flow months —such (hereinafter the Stevens’ dissent flowing postulated by stream Justice dissent), distinguish be usage post, at 800. Common sense and common tween a and seasonal river. wash “in- scientifically “perennial”

Though precise distinctions between available, see, Interior, S. g., Dept, e. U. termittent” flows are no doubt Survey, Osterkamp, & Streamflow Characteris- Geological E. Hedman W. in Western United States Geometry tics to Channel of Streams Related (1982) this 2193), litigation we have no occasion in (Water-Supply Paper is continuous and exactly to decide a streambed drying-up when the as a of the United frequent enough disqualify “wate[r] the channel “rivers,” “lakes,” and “oceans,” “bod “streams,” found Ibid. All of ies” water features.” “forming geographical these terms connote fixed bodies continuously present, water, as channels which ordinarily opposed dry through flows. Even the least occasionally intermittently terms, “streams,” substantial of definition’s con namely, notes a continuous flow water channel— permanent when used with other terms such as especially company ”6 “rivers,” “lakes,” and “oceans. of en None these terms or flows of water. compasses transitory puddles ephemeral The restriction of “the of the waters United States” to exclude channels intermittent or containing merely ephem- States.” It suffices for present purposes that channels containing perma- nent flow are plainly definition, within the and that the dissent’s “intermit- post, “ephemeral” streams, tent” and is, at 801—that streams whose flow “[doming [b]roken, going fitful,” at intervals ... Webster’s Second 1296, or “existing only, than, or no longer short-lived,” a . . day; diurnal. id., at 857—are not. 6The principal definition “stream” likewise includes such reference to permanent, geographically fixed bodies of water: current or “[a] course of river, brook, fluid, or Id., earth, water other etc.” flowing on the aas added). at 2493 (emphasis The other definitions of repeatedly “stream” steady flow, emphasize requirement continuous flow: “[a] as of water, air, like”; gas, or “[a]nything or issuing moving with continued succession Ibid, “[a] continued current or parts”; course; current; drift.” added). (emphasis The definition of the verb form con of “stream” a emphasis continuity: stream; tains similar on or in a “[t]o issue flow Ibid, freely issue a continuous or course.” move (emphasis flow added). definitions, therefore, On these Corps’ phrases “intermittent streams,” §328.3(a)(3) (2004), 33 CFR streams,” and “ephemeral 65 Fed. “ ” (2000), Reg. 12823 ‘flowing gullies,’ post, are —like Senator Bentsen’s at J.) Stevens, n. 11 (opinion of oxymora. Properly speaking, —useful such' entities only they constitute extant “streams” while are “continu ously] ñow[ing]”; usually dry and the channels contain them are Kennedy never “streams.” Justice apparently concedes that “an inter flowing,” post, it is only mittent flow can “while constitute stream” added) (emphasis would mean that the channel is a “water” —which only during actually covered the Act those when times water flow occurs. But no one jurisdiction appears evapo contends that federal along dry rates with the regularly such channels. understanding with the commonsense flow also accords eral “ephemeral applying In the definition of the term. culverts, “di- meadows,” sewers and storm streams,” “wet man- during tiles, events,” storm drain flow rectional sheet arroyos dry drainage in the middle of ditches, and made term “waters has stretched desert, plain language parody. beyond The United States” simply this “Land Is Waters” does not authorize statute approach jurisdiction. to federal “naviga phrase the traditional addition, the Act’suse of term) (the it con further confirms that defined

ble waters” relatively permanent jurisdiction only over bodies of fers pred adopted from its Act that traditional term water. The SWANCC, S., ecessor statutes. See 531 U. (Stevens, “navigable understanding, dissenting). On the J., traditional only exam For waters” included discrete bodies water. ple, “waters” and Ball, Daniel used the terms we Appala interchangeably. 10 at 563. And in Wall., “rivers” “navigable consistently Electric, we referred to chian Plainly, “waterways.” be U. at 407-409. waters” susceptible navigable to cause such “waters” had be fact being ephemeral so, of rendered term did include SWANCC, “navi flows. As we noted in the traditional term gable though as “the waters of the waters” —even defined “[I]t original United States” —carries some of its substance: give quite thing word limited effect and another to one a give S., it no at That limited effect whatever.” 531 U. 172. ordinary presence of includes, minimum, effect bare water. interpretation phrase subsequent “the waters

Our of this limi- the United States” in the likewise confirms CWA Bayview, scope. tation its In Riverside we stated phrase primarily “rivers, streams, in the Act referred conventionally hydrographic and other more iden- features adjacent to fea- as than the wetlands such ‘waters’” tifiable added). (emphasis tures. 474 U. at 131 thusWe echoed dictionary referring definition of “waters” as to “streams forming geographical and bodies such as oceans, features [and] (emphasis rivers, lakes.” Webster’s Second 2882 added). Though upheld we in that case the inclusion of wet- abutting “hydrographic lands such principally a featur[e]”— difficulty drawing any due boundary to the clear between the two, see 474 S.,U. Part 132; IV, infra —nowhere suggest did we that “the waters of the United States” should expanded be right, to include, in their own entities other “hydrographic than conventionally features more identifiable as ‘waters,’” id., at 131. Likewise, in both Riverside Bayview repeatedly and SWANCC,we described the “navi- gable by “open waters” covered the Act “open as water” and Bayview, waters.” supra, See Riverside at 132, and n. 8, supra, 134; SWANCC, at 167, 172. Under no rational in- terpretation typically dry are “open channels described as waters.” significant

Most categorizes all, the CWAitself the chan- nels typicálly carry conduits that intermittent flows of separately “navigable from including waters,” them “ ” “ ‘point the definition of ‘point source.’ The Act defines “any source’” as convey- discernible, confined and discrete including any ance, pipe, but not limited to ditch, channel, tunnel, conduit, rolling well, discrete fissure, container, stock, feeding operation, concentrated animal or vessel or other floating pollutants craft, from may which are or be dis- “ 1362(14). charged.” 33 U. S. C. It also defines ‘dis- ” charge pollutant’ “any any pollutant as addition of §1362(12)(A) any point waters source.” from added). (emphasis “point The definitions thus conceive of “navigable sources” separate waters” and distinct cat- egories. “discharge” The definition of would make little categories sense if significantly the two overlapping. were separate classification of “ditch[es], channels], and con- 736 the wa- used to describe are terms ordinarily

duit[s]” —which intermittent waters typically tercourses which through not “waters of the are, that these flow—shows large, United States.”7

7 Kennedy observe, true, both It of course as the dissent and Justice is ditches, channels, perma water conduits and the like “can all hold Stevens, J.); (opinion of see nently intermittently,” post, as well as at 802 J.). do, Kennedy, they But when we (opinion 771-772 post, also at “creeks,” “rivers,” permanently A usually to them as or “streams.” refer (because “ditch,” it technically a but is flooded ditch around a castle is water) it as a “moat.” See normally filled with we describe permanently n And a flooded man-made ditch used permanently Webster’s Second 1575. “ditch,” described, as a but as a “canal.” navigation normally not id., Likewise, perma which water open through See at 388. an channel “channel,” “stream,” nently ordinarily not as a be flows is described as a particularly of water. This distinction is presence cause of the continuous (for than regulating quality, context of a statute rather apt Kirk, 453, 98 U. S. example) shape of streambeds. Cf. Jennison v. (1879) when the (referring 454-456 to man-made channels as “ditches” ditch); PUD alleged injury physical damage arose from to the banks of the 700, 511 U. S. Cty. Washington Dept. Ecology, No. v. of Jefferson (1994) to a water-filled tube as a “tunnel” in order to describe (referring water-filled), shape conveyance, not the fact that it was both J.). 802, Stevens, post, only cited at n. 12 natural read (opinion of On its “ditch[es], ing, separately such a statute that from chan treats “waters” nel[s], tunnel[s], eonduit[s],” continu thereby distinguishes between ously only an occasional or flowing containing “waters” and channels intermittent flow. manufactured, artificial, conveyance

It highly is also true that enclosed at 772 of Ken- systems “sewage plants,” post, (opinion as treatment —such nedy, J.), “mains, pipes, hydrants, machinery, buildings, and the and other of water- appurtenances city “system and incidents” of the of Knoxville’s works,” Knoxville, 22, (1906), S. cited Knoxville Water Co. v. 200 U. Stevens, post, (opinion J.) likely qualify n. 12 do not as “waters — States,” despite they may of the United the fact that contain continuous Kennedy, J.); post, (opinion post, flows of water. See at 772 J.). Stevens, interpre- our (opinion n. But this does contradict tation, relatively necessary which asserts that continuous flow is a condi- “water,” Just as qualification adequate tion for as a not an condition. “waters,” ordinary dry so also it usage typically does not treat beds only foregoing Moreover, the definition of “waters” is con “policy Congress sistent recog with the CWA’sstated to preserve, protect primary responsibilities nize, and the and rights prevent, of the pollu States reduce, and eliminate [and] plan development tion, (including the and use resto enhancement) preservation, ration, of land and water 1251(b). § resources . . . policy This statement of was included the Act prior as enacted in 1972,see 86 Stat. optional to the addition of pro state administration gram in the 1977 amendments, see 91 Stat. 1601. Thus the policy plainly something beyond referred to the subse quently program added state administration of 33 U. S. C. §1344(g)-(Z). expansive theory But by advanced Corps, “preserving] rather primary rights than and re sponsibilities of the brought virtually States,” would have all “plan[ning of] development and use ... of land and water by resources” the States under federal control. It is there unlikely reading fore an phrase “the waters of the United States.” phrase Even if the “the waters of the United States” were ambiguous applied to intermittent flows, our own canons of construction would Corps’ interpre- establish that the tation impermissible. of the statute is As we noted in elaborate, does not treat man-made, such systems enclosed as “waters” on par “streams,” “rivers,” with and “oceans.” Kennedy Justice contends that the Corps’ preservation of the “re sponsibilities rights” of the States is adequately demonstrated fact that plus “33 States the District of Columbia have filed an amici brief litigation” this in favor of Corps’ interpretation, post, at 777. But it makes no difference to the purpose statute’s stated of preserving States’ “responsibilities 1251(b), and rights,” that some States wish to unburden themselves them. Legislative and may executive officers of the States be content to leave “responsibility]” with because it is attrac tive to shift entity another controversial disputed decisions between politically powerful, rival That, however, interests. is not what the stat provides. ute expansive interpretation would

SWANCC,the Government’s impingement traditional significant of the States’ in a “result power 531 U. primary land and water use.” over through the issuance of the Regulation as use, of land 174. by petitioners permits sought in both of these development power. quintessential and local See FERC state cases, is (1982); Mississippi, 30 Hess v. 742, 767-768, 456 U. n. v. S. Corporation, 44 Authority 30, 513 U. S. Trans-Hudson Port (1994). urged by jurisdiction the Gov- The extensive federal de to function as a ernment would authorize the facto regulator land—an au- of immense stretches of intrastate willingness thority agency with its to exercise has shown zoning scope that would befit a local board. of discretion (2004). 320.4(a)(1) ordinarily expect a 33 We See CFR Congress from to authorize “clear and manifest” statement authority. unprecedented an intrusion into traditional state Corporation, BFP Resolution Trust 511 U. S. See v. (1994). phrase 544 “the waters of United States” hardly qualifies. just Corps’ inter-

Likewise, SWANCC, as we noted in pretation Congress’s stretches the outer limits of commerce power questions scope and raises difficult about the ultimate (In developing power. of that See 531 U. 173. regulations, Corps consciously sought current to extend authority power. its to the farthest reaches of the commerce (1977).) Reg. 37127 Even if the term “the wa- See Fed. ambiguous applied ters of the were as United States” ephemeral of water channels sometimes host flows (which not), expect it is we would a clearer statement from theory Congress agency jurisdiction that to authorize an validity. presses envelope Edward of constitutional See Corp. Building J. DeBartolo v. Florida Coast & Constr. Gulf (1988).9 Council, Trades 485 U. S. Kennedy dear- objects Justice that our reliance on these two interpretation inappropriate plurality’s statement rules is because “the is, raises,” post, does not fit the avoidance concerns that it at 776—that only plausible interpretation, phrase on its sum, only of the those rela “the waters United States” includes tively permanent, continuously standing flowing or bodies of “forming geographic features” that are described in ordinary parlance [and] . “streams[,] oceans, rivers, . . phrase lakes.” See Webster’s Second 2882. The does not through include intermittently channels which water flows ephemerally, periodically provide or channels that drain age Corps’ expansive interpretation for rainfall. The “the waters of the United States” is thus not “based on a permissible construction of the statute.” Chevron A. U. S. Inc. v. Natural Resources Council, Inc., 467 U. S. Defense (1984). 837, 843

IV In Carabell, the nearby Sixth Circuit held that the ditch “tributary” constituted a and thus a “water of the United 328.3(a)(5). § States” under 33 CFR See 391 3d, F. at 708- Rapanos 709. Likewise in II, the Sixth Circuit held that nearby 328.3(a)(5). ditches were “tributaries” under Rapanos 3d, F. at 643. But II also stated if that, even the ditches were not “waters of the United States,” the wet “adjacent” lands were navigable to remote traditional waters “hydrological in virtue of the wetlands’ connection” to them. id., practice See at 639-640. This statement reflects the our because resolution jurisdiction both eliminates some clearly constitutional traditionally federal, and retains some question- that is ably constitutional and traditionally local. But a elear-statement rule can carry only one so far statutory permits. resolution, as the text Our unlike Kennedy’s, Justice keeps both the overinclusion and the underinelusion Kennedy’s to the minimum consistent statutory with the text. Justice reading despite disregarding text —fares no better than ours as a — precise “fit” for the “avoidance concerns” that he also He acknowledges. admits, post, that “the significant-nexus requirement may not align perfectly with the authority” traditional extent of federal navigable over understatement,” waters —an admission that “tests the limits of Gonzales (2006) v. Oregon, (Scalia, J., 546 U. S. dissenting) aligns it—and even worse with the preservation regulation. of traditional state land-use jurisdiction may “assert which offices, district connecting it to regulating the ditch without over a wetland Report there- 23. We GAO of the United States.” a water may be con- wetland a in this Part whether fore address States,” “adjacent of the United to” remote “waters sidered hydrologic to them. connection a mere because of difficulty in Bayview, noted the textual we In Riverside purely a including of “waters”: “On as a subset “wetlands” classify appear may linguistic unreasonable level, it ” S., at 132. 474 U. otherwise, as ‘waters.’ ‘lands,’ wet or inherent am- acknowledged, there was an however, that We any drawing “waters”: biguity the boundaries of point necessarily “[T]he choose some must expe- begins. common ends and land Our which water easy task: the transi- that this is often no rience tells us necessarily ground is not tion from water to solid open abrupt typically Rather, between an one. even dry may mudflats, marshes, shallows, land lie waters huge array swamps, bogs that are a of areas short, —in wholly aquatic far short of nevertheless fall but dry being to find the on this continuum land. Where Ibid. limit of ‘waters’ is far from obvious.” ambiguity, to the inherent we deferred Because of this “actually abut[ting]” agency’s tradi inclusion of wetlands problem of de tional waters: “Faced with such authority,” fining regulatory held, we of its bounds reasonably agency that “ad conclude that a wetland could join[ed]” part of those States is itself a waters of United difficulty The of delineat Id., at and n. 9. 132, 135, waters. ing boundary our land was central to between water and reg reasoning of the breadth of federal in the case: “In view ulatory authority contemplated by the in the Act itself and regulable defining precise bounds to herent difficulties of Corps’ ecological judgment relation about the waters, the provides adjacent ship their wetlands between waters and wet- that adjacent an basis for a judgment legal adequate Id., the Act.” at 134 as waters under lands be defined may added).10 (emphasis Bayview of Riverside we characterized holding

When SWANCC, connection between in we referred to the close “It blend into: waters and the wetlands they gradually significant nexus between the wetlands and was the ‘naviga in River that informed our of the CWA ble waters’ reading Bayview added). side Homes.” 531 U. at 167 S., (emphasis SWANCC rejected In the notion that ecologi particular, in cal which the relied considerations Riverside. upon relies which the dissent repeatedly Bayview upon —and post, 797-798, 798-799, 800, 803, 806, 807, see at today, independent basis for enti an including provided 809-810 — ties like “wetlands” (or streams”) within the “ephemeral “the waters of the United States.” SWANCC found phrase irrelevant question such considerations ecological Bayview actually Riverside in abutted 10 “Sincethe wetlands at issue States, have held that possibly of the United the case could not waters jurisdiction. Obi merely wetlands came within the “neighboring” inferred, however, ter opin from the approval proposition might of that be by Corps describing statement quotation ion’s without comment “ form the border of or are “adjacent” wetlands as those ‘that covered ” S., 474 U. proximity reasonable other waters of the United States.’ added). (1977); opinion emphasis (quoting Reg. at 134 Fed. however, could be re reiterated, wetlands immediately “the inherent States” in view of garded as “the waters of the United waters,” 474 at U. precise regulable bounds to defining difficulties of physically separated application would have no 134—a rationale that Riverside at issue Given that the wetlands “neighboring” wetlands. id., at waterway,” Bayview on a “actually abut[ted] themselves could 135; that unconnected opinion recognized that our given “ ” id., 132; all, given ‘waters’ naturally not be characterized as waters end determining where difficulty to the repeated reference a wet is that reading opinion natural begin; and wetlands the most States is to waters of the United proximity” lands’ mere “reasonable event, our any as discussed Corps jurisdiction. to confer enough eliminated text, has been any possible ambiguity immediately following (2001). SWANCC, 531 U. S. 159 Corps’ physically waters come within whether isolated Bayview jurisdiction. It thus confirmed that Riverside defining upon ambiguity where water rested inherent abutting (“adjacent”) begin, permitting ends and ecological only reliance on considerations to re ambiguity treating abutting solve that in favor of all wet ponds lands as waters. Isolated were not “waters of the right, United States” their own see 531 atS., 167, 171, U. presented boundary-drawing problem no that would justified ecological have the invocation of factors treat them as such. only

Therefore, those wetlands with a continuous surface connection to bodies that are “waters of the United States” right, in their own so that there is no clear demarcation be- tween “adjacent “waters” and wetlands, are to” such waters by and covered only the Act. Wetlands with an intermit- physically hydrologic tent, remote connection to “waters of implicate United States” do boundary-drawing problem Bayview, of Riverside necessary and thus lack the connection to covered “sig- waters that we described as a nificant nexus” in SWANCC. 531 U. at 167. Thus, es- tablishing that Rápanos wetlands such as those at the Carabell sites are requires covered findings: the Act two first, that the “wate[r] channel contains a (i. relatively United permanent States,” e., a body of water connected waters); traditional interstate second, that the wetland has a continuous surface connection with making that water, it difficult to determine where the “water” begins. ends and the “wetland”

V Respondents urge and their amici that such restrictions scope “navigable on the waters” will frustrate enforce- against ment polluters traditional water under 33 U. S. C. §§1311and 1342. “navigable Because the same definition of applies waters” respondents the entire statute, contend polluters that will be able permitting to evade the re- 1342(a) § quirement simply by pollutants discharging their upstream into noncovered intermittent watercourses that lie Arg. covered waters. See Tr. Oral 74-75. Though That is not we issue, so. do not decide this there suppose today signifi- is no reason to that our construction § cantly 1342, affects the enforcement of inasmuch as lower §1342 applying courts not have characterized intermittent channels as “waters of the does United States.” Act any pollutant directly navigable forbid “addition of to point any waters from source,” but rather the “addition of 1362(12)(A) § any pollutant navigable (emphasis waters.” 1311(a). § added); Thus, from the time of the CWA’senact- discharge ment, lower courts have held that into inter- pollutant any naturally mittent channels of washes §1311(a), likely pollutants downstream violates even if the discharged point “directly a from source do not emit into” pass “through conveyances” covered waters, but in between. Corp., Supp. United States 945, v. Velsicol Chemical 438 F. (WD (a 1976) municipal system sepa- 946-947 Tenn. sewer waters). “point navigable rated the source” and covered See also Sierra Paso Mines, Inc., Club v. El Gold 421 F. 3d (CA10 2005) (2.5 separated 1133, 1137, 1141 miles of tunnel waters”). “point “navigable source” and many upstream, fact, courts have held that such in termittently flowing “point channels themselves constitute “point sources” under the The definition of in Act. source” “any pipe, well, cludes ditch, channel, tunnel, conduit, dis rolling fissure, crete container, stock, concentrated animal feeding operation, floating or from craft, vessel other pollutants may discharged.” which are or 33 S. C. be U. 1362(14). plain have Act “makes that a We held point original pollutant; source need not be the source of the only convey pollutant ‘navigable it need waters.’” Management Tribe, South Fla. Water Dist. v. Miccosukee (2004). holding intervening 541 chan 95, 105 U. S. Cases point nel Ortiz, to be a source v. 427 include United States (CA10 2005) (a F. 1278, 3d storm drain that carried a River was to the Colorado a toilet from chemicals flushed F. 2d Burlington, v. source”), and Dague “point two bodies 1991) (a (CA2 culvert connecting 1354-1355 rev’d on other source”), water was “point (1992). have even courts Some 505 U. S. grounds, rationale “indirect discharge” both the adopted alternative, in the applied rationale source” “point Envi Area See, Residents same e. Concerned facts. g., (CA2 F. 3d 118-119 Farm, 34 ronment v. Southview 1994). courts have seen however, the lower view, either On the conduits as “waters of the no need to intervening classify United States.” the to the covered normally by per- contrast pollutants fill material,” §of or 1342(a), “dredged

mitting requirement of for the sole which is staying typically deposited purpose and thus does downstream,11 not wash does put, normally not an ... to waters” constitute “addition normally navigable §§ 1344(a), when in isolated wetlands. deposited upstream “the like argues very The dissent that existence of words ‘alluvium’ or suggests [dredged in our that at least fill mate language ‘silt’ some omitted). (citation post, at 807 downstream,” way See also rial] makes its J.). amici cite multi Kennedy, contrast, post, at 774-775 (opinion By of analyses philological approach that contradict the dissent’s ple empirical that that including “[t]he to sediment one which concludes idea erosion — waters, fill into discharge ephemeral the of material isolated dredged pollute navigable any appre located drains or non-tidal ditches will waters Pierce, credibility.” from R. Technical Princi ciable distance them lacks Establishing to of for Section 404 of ples Related Limits Jurisdiction 2003), (Apr. http://www.wetland the Clean Water Act 34-40 available at cited for of training.com/tpreljscwa.pdf, in Brief International Council Amici 26-27; Homes, Curiae Centers Brief for Pulte Shopping et al. as 20-21; Amici Inc., Curiae Brief for Foundation for Environmental et al. as (“Fill Curiae Amici Progress al. as and n. 53 material Economic et unnecessary, how migrate”). analysis entirely does not Such scientific is ever, mobile pol of deposit to reach the unremarkable conclusion that the as an upstream naturally lutants into channels is described ephemeral § waters,” 1362(12), deposit to S. C. while the “addition ... 33 U. stationary fill generally of material is not.

1362(12). Act this distinction recognizes by provid- for ing separate such in permitting program discharges 1344(a). § It not does appear, therefore, the inter- we reduces the pretation adopt of today significantly scope § 1342. also

Respondents narrower urge interpretation of “waters” will a more difficult burden of impose proof 1311(a) §§ enforcement under 1342(a), re proceedings to quiring demonstrate agency downstream flow of pollutant intermittent channel along traditional “waters.” See Tr. Oral 57. But, above, as noted Arg. the lower courts do not on characterization generally rely channels as “waters of the intervening United States” § 1311 to the applying traditional §to 1342. pollutants subject Moreover, proof downstream flow of re pollutants under quired if iden appears similar, substantially tical, of a proof connection that would be hydrologic on the Sixth required, Circuit’s theory jurisdiction, that an prove channel or upstream wetland a “wate[r] Rapanos II, the United States.” See F. 3d, at 639. Cert, g., e. to Pet. Compare, App. 04-1034, Bll, No. B20, B26 of (testimony connections based on ob hydrologic servation of surface water connections), with Southview supra, Farm, at 118-121 of based on (testimony discharges water). observation of the case, flow of In polluted either the must that the contaminant-laden agency prove waters reach covered ultimately waters. amici admonish

Finally, and nar- that respondents many the definition of “the of rowing waters the United States” will federal efforts to wet- hamper the Nation’s preserve lands. It is clear not that the state and local conservation efforts that the CWA calls S. for, see 33 U. C. explicitly § 1251(b), are in for the of any way inadequate goal preserva- In tion. event, a any National Wetlands Comprehensive Protection Act is us, not before the of such “wis[dom]” post, statute, at of is our J.), (opinion beyond Stevens, Congress not enact did however, is that clear, What is ken. jurisdiction only Corps “the granted over it one when States.” of the United waters

VI protection long opinion praise of on environmental an statutory notably analysis struc text and on short of the United that “the waters would hold ture, dissent (no “adjacent” any how matter include States” defined) (again, how broadly no matter to “tributaries” defined) legal broadly navigable waters. For of traditional ex policy-laden dissent relies support conclusion, the of its opinion clusively “[o]ur in River on unanimous two sources: “Congress’ Bayview,” post, ac deliberate 792; at side quiescence Corps’ regulations post, 1977,” at 797. in the ap demonstrably inadequate support is Each these scope permit parently would limitless dissent give to the Act.

A Bayview “squarely The dissent’s assertion that Riverside wholly post, implausible. cases,” controls these Bayview possibly support the dis- First, Riverside could acceptance dry Corps’ of the as “trib- sent’s inclusion beds post, utaries,” because definition of tributaries Bayview not at in that addressed was issue case. Riverside only abutting navigable-in- the Act’s inclusion of wetlands nonnavigable nothing at all what waters, fact and said about might Act also tributaries the cover. Bayview provides support for the likewise no

Riverside complacent acceptance dissent’s definition above) (as “adjacent,” be- which noted has been extended 100-year yond floodplain alia, include, reason to inter supra, covered at 728. The dissent notes waters. See Corps’ Bayview quoted de- Riverside without comment the “ scription “adjacent” of as ‘that form the bor- those proximity der of are in reasonable to other waters’... (citing Post, S., the at at 134 United States.” U. 37128)). (quoting Reg. already 42 Fed. we dis As have quotation provides support cussed, this no for the inclusion physically unconnected wetlands covered “waters.” supra, principally 741, See at The n. 10. dissent relies on a “ Bayview recognizing every footnote in Riverside ‘not that adjacent importance great wetland is of to the environment ” “ ” adjoining ‘adjacent’ bodies water,’ and that all wet by post, (quot lands are nevertheless Act, covered the at 793 9). ing says at course, U. 135, n. Of this footnote nothing support “adja to the dissent’s broad definition of quite contrary, quoted “adja the sentence uses cent”— cent” “adjoining” interchangeably, and the footnote qualifies holding a sentence that the wetland was covered “fbjecause” “actually abutfted] navigable waterway.” it on a added). (emphasis Id., at 135 Moreover, that footnote’s as may interpreted sertion that the Act be even include those adjoining “lacking importance wetlands that are to the aquatic id., environment,” n. 9, confirms that scope ambiguity of “the waters of United States” is physical determined a wetland’s connection covered ecological relationship waters, not its thereto. (1) Bayview

The dissent reasons that Riverside held that “the “adjacent waters of the United States” include wet- (2) interpretation lands,” we defer to must ambiguous “adjacent.” of the Post, word at 805-806. But legerdemain. phrase “adjacent this is mere wetlands” part statutory is definition that the is au- interpret, only thorized to which refers to “the waters of the 1362(7).12 § expounding States,” United 33 U. C. S. 12Nor does the passing reference to “wetlands thereto” in § 1344(g)(1) purport that expand statutory definition. As dissent concedes, post, merely statutory that reference confirms that be read to include some definition can namely, those di wetlands — Bayview Riverside rectly “abut” acknowl explicitly covered waters. edged 1344(g)(1) determine construction conclusively “does not 748 Bayview, “adjacent” we are ex- in Riverside as used

term interpret prior to the plaining use that word our own phrase the States.” How- “the waters of United definitional may ambiguous as we have abstract, in the ever term be Bayview explained “adjacent” as used in Riverside earlier, merely abutting” “physically ambiguous and is not between supra, “nearby.” at 740-742. See ground distinguish on the SWANCC The dissent would nothing say post, wetlands,” at 794— about that it “had ponds” rather than isolated wet- i. it concerned “isolated e., a difference. without lands. This is ultimate distinction ponds varying “permanent size If ... isolated seasonal might depth,” which, all, at least S.,U. at after 163— right in not con- be as “waters” their own described —did a isolated States,” stitute “waters of the United fortiori, swampy of the United lands do not constitute “waters to- S., also at 132. As the author of States.” See 474 U. day’s actually naviga- believe, I written, “[i]f, dissent has very Congress’ ble lie at the heart of commerce waters power nonnavigable lie . 'isolated,’ waters closer to . . only margin, which are themselves wetlands,’ 'isolated marginal category marginally 'waters,’ the most 'wa- are potentially by the covered stat- ters of United States’ dissenting). J., ute.” 531 U. n. (Stevens, only ground to distin- other that the dissent offers guish ponds SWANCC, is unlike the that, SWANCC “adjacent are bodies these cases “adjacent” may be water and their tributaries” —where why broadly. interpreted It is clear who-knows-how not roughly physical proximity should make such a dif- defined boundary- raises no abutment, ference—without actual it (particu- Act on use of term placed be ‘waters’ elsewhere [§1862(7)], ‘navigable larly in the relevant which contains definition waters’); however, the term suggest strongly ... it does at least ” necessarily ‘waters’ as used in the Act does exclude ‘wetlands.’ added). S.,U. (emphasis n. 11 proxy drawing undoubtedly poor ambiguity, and it ecological significance. though is careful the dissent fact, “adjacent” to to restrict its discussion to wetlands tribu- including strictly are taries, its reasons for those wetlands ecological they wetlands would be included because —such important quality post, roles,” “serve . . . and “play important post, roles in the This watershed,” at 803. reasoning swiftly altogether; would overwhelm SWANCC ponds after all, the at issue in could, SWANCC no less than ‘nesting, spawning, cases, the wetlands in these “offer rear- ing resting aquatic species,’” sites for or land storage “‘serve as valuable areas storm and flood wa- ” post, ters,’ ecologi- at 796. The dissent’s on exclusive focus cal factors, combined with its total deference to the ecological judgments, permit regulate would country the entire as “waters of the United States.”

B plausible ground Absent a in sweeping our case law for its position, heavily “Congress’ dissent relies on deliber- acquiescence Corps’ regulations ate post, in the in 1977,” noting “[w]e [this acquiescence] signifi- found 797— Bay cant in “acknowledged view,” Riverside and even in SWANCC” that we had so, done ibid. SWANCC “acknowl- edged” Bayview congressional that Riverside had relied on acquiescence only to criticize that reliance. It in reasserted oft-expressed skepticism no uncertain terms our toward reading congressional the tea leaves of inaction:

“Although recognized congressional acquies- we have interpretations cence to administrative of a statute situations, some we have done so with extreme care. legislative proposals particularly dangerous Failed are a ground interpretation on prior which to rest an of a relationship statute. . . . The between the actions and Congress inactions of the 95th and the intent the 92d 1344(a)] Congress passing [§ considerably is at- also history illuminat- subsequent less Because tenuated. respondents contemporaneous evidence, ing than the plain im- overcoming text task face a difficult (brackets, 1344(a)].” ci- [§ port at 169-170 531 U. omitted). quotation and footnote marks, tations, internal legisla except by governmental Congress áction no takes “Congress’ deliberate refers to tion. What the dissent appropriately acquiescence” called Con more be should any opinion. gress’s express We have no idea failure to in 1977 attributable failure to act was whether Members’ Corps’ regulations correct, were to their belief that the any to their that the courts would eliminate rather belief unwillingness simply excesses, or to confront indeed their lobby. To sure, the environmental be we have sometimes congressional acquiescence on when is evidence relied there Congress rejected “precise issue” that considered and presented Court, before the Bob Jones Univ. v. United (1983) added). (emphasis States, 461 574, 600 U. However, S. overwhelming “[a]bsent acquiescence, such evidence we replace plain original are loath to text and understand ing agency interpretation.” of a statute with an amended added). supra, (emphasis SWANCC, 169-170, at n. 5 “overwhelming producing The dissent far short of evi falls upon Congress that failed dence” considered and to act “precise today namely, issue” the Court consti before what — “adjacent” by Citing tutes an Riv wetland covered Act. Bayview’s debates, erside account the 1977 the dissent nothing Congress claims more than that “conducted exten Corps’ regulatory jurisdiction sive debates over about [and] rejected jurisdiction____” to limit that efforts vague description goes at Post, fact, 797. In even that too Bayview, far. As recounted in the 1977 debates Riverside proposal Corps’ authority “limi[t] concerned under navigable adjacent [§1344] to in and their wet waters fact (defined by contigu periodically lands as wetlands inundated waters),” rejecting ous 474 at 136. In this S.,U.

751 failed to enact a limitation of “wa- proposal, Congress merely ters” to include waters —an only navigable-in-fact interpre- supra, tation we see at 731—and a affirmatively reject today, definition of wetlands based on “periodi[e] inundation]” almost nowhere in the briefs or of these appears opinions cases.13 No of this inac- plausible interpretation legislative tion can construe it an endorsement of implied every jot Riverside and tittle of the In Corps’ fact, regulations. Bayview itself relied on this inaction as “at legislative only least some evidence of the reasonableness” of the agency’s inclusion of Act, S., wetlands under the adjacent U. 137, and for the observation that “even those who would have Kennedy’s exception The sole opinion, is Justice argues which Bayview that Riverside rejected physical-connection our requirement by that any accepting given as a by wetland formed inundation from covered (whether them) waters continuously or not by connected to is covered Bayview Riverside Act: “The Court ... did not that a suggest flood- based origin support indeed, would not jurisdiction; presumed it the oppo S., view was valid ‘even site. See 474 U. (noting for wetlands that are not the result of flooding permeation’ (emphasis or Kennedy added)).” Post, at 773. Of course Justice himself fails to ob serve supposed this presumption, “significant since his nexus” test makes exception no event, wetlands created any inundation. the lan Kennedy’s Bayview Riverside guage from in Justice parenthetical Kennedy wrenched out of context. The sentence which Justice quotes in part immediately followed the Court’s conclusion that “adjacent” wet lands are included because of “the defining precise inherent difficulties of waters,” regulable bounds to 474 U. at 134. And the full sentence reads as follows: “This holds true even for wetlands that are the result flooding permeation by its having source bodies of ibid, added). open water,” (emphasis Clearly, the “wetlands” referred to only the sentence are “adjacent” namely, those with the con wetlands — Bayview opinion connection that the rest of the Riverside physical tinuous supra, required, Thus, see at 740-742. it is evident that the lan quoted guage rejection was not at all a physical-connection requirement, of the (which but a rejection rather of the alternative had been position adopted 125) only by case, the lower court in that see U. at that the covered are by long those created inundation. As as the wetland is “ad Bayview, said Riverside its creation vel non waters, jacent” to covered inundation is irrelevant. Corps’ jurisdiction” not would reach of the

restricted the of conclu- wetlands, ibid. Both these have excised interpretation, and perfectly with our are consistent sions question disputed of what constitutes the neither illuminates “adjacent” wetland. an

C appeal the error, executive In a to entrenched curious Corps’ appropriateness of that “the dissent contends 30-year implementation Act be the Clean should of Water Congress Corps rather to the addressed to or the than Judiciary.” post, 787-788, also at 807. Post, 799; at see Surely principle sort a novel of administrative law—a this is 30-year possession disregard of of that insulates adverse statutory judicial deservedly no review. It has text from precedent jurisprudence. in our We did not invoke such aspect principle one SWANCC, when we invalidated Corps’ implementation. “[bjecause ambiguity in

The dissent contends that there is phrase of inter- ‘waters the United States’ and because preting broadly it such ditches and streams ad- cover purpose Corps’ approach vances of Act, should Post, command in a our deference.” 804. Two defects single “[WJaters sentence: of the United States” is in some respects ambiguous. scope ambiguity, of however, dry conceivably not does extend to whether storm drains and support “waters,” ditches are hence does not interpretation. advancing purpose And “the as for extravagant Act”: We have often criticized that last resort interpretation, noting pursues purpose that no law its at all scope upon costs, that the textual limitations a law’s are part “purpose” no less a its than its substantive authoriza- g., Compensation See, Director, tions. e. Workers’ Office Dry Programs Newport Shipbuilding Co., & Dock v. News (1995). 514 U. S. 122, 135-136

Finally, agree more state- we could with dissent’s “[wjhether post, particular ment, the benefits outweigh ques- conservation measures their costs is a classic by ap- public policy tion of that not be answered should pointed judges.” it Neither, however, should be answered by appointed Corps Engineers officers of the in contradic- congressional opinion, tion of It is the dissent’s direction. appeals interpreta- and not which not to a reasonable ours, great text, tion of but to the environmental benefits enacted patently interpretation that a unreasonable can achieve. begun by mentioning, sure, We have our discussion to be high by imposed interpretation they costs are in —but way plainly no the basis for our which decision, rests, simply, upon meaning the limited that can be borne phrase “waters of the United States.”

VII opinion reading concludes our Kennedy’s Justice pur- the Act “is text, inconsistent with its structure, pose.” opinion, Post, at 776. His own however, leaves the virtually Act’s “text” and “structure” unaddressed, and rests upon interpretation phrase “significant its case an appears opinions. nexus,” ibid., which in one of our begin reading “significant To with, Justice Kennedy’s easily recognizable nexus” bears no relation to either the (SWANCC) case that used it or to the earlier case that that (Riverside purported interpreting Bayview). case to be To . “significant establish a would re- nexus,” Justice Kennedy case-by-case quire to “establish ... on a basis” that nonnavigable “significantly tributaries physical, biological integrity affect chemical, of other readily ‘navigable.’” covered waters more understood as certainly Post, This not come 780. standard does Bayview, rejected explicitly from Riverside which such case-by-case ecological significance determinations of for the jurisdictional question whether a wetland is hold- covered, ing physically are instead that all connected wetlands cov- enough It true that one ered. U. n. 9. was criterion physical-connection accepting that reason for would physically wetland connected a likelihood that But upon waters. ecological effect an have ecological was not the case-by-case effect determination from derived SWANCC’s test cannot be Likewise, that test. emphasized Bayview, which of Riverside characterization “significant nexus” possessed a which that the wetlands waterway,” navigable “actually a abutted on case that earlier argu- rejected specifically and which 531 U. ponds be included physically could unconnected ment that In ecological covered waters. connection to on based their acknowledges neither that fact, Justice River- Kennedy abutting required, Bayview for wetlands nor side SWANCC ecological case-by-case deter- navigable-in-fact waters, neighbor non- proposes he for wetlands mination that post, navigable Thus, at 780. tributaries. See JUSTICE SWANCC’,s“significant nexus” state- misreads Kennedy Bayview adopt mischaracterizing a Riverside ment as significance; case-by-case ecological then trans- test of Bayview ex- to a context that Riverside fers that standard nearby (namely, pressly non- declined to address tributaries); conceding navigable this all the time while Bay- apply that Riverside standard does not in the context (wetlands waterways). navigable abutting view did address way Truly, this is “turtles all the down.”14 prior principal misreading decisions is not the But our problem reading problem. principal them in utter think, would after isolation from the text of the Act. One in different forms and attributed story The allusion is to a classic told e. g., See, Geertz, an Inter Description: Thick Toward to various authors. (1973). Culture, 28-29 Theory Interpretation in The of Cultures pretive version, sup the earth is guru In our favored an Eastern affirms that he supports tiger, ported tiger. on the back of a When asked what the ele says supports it an and when asked what upon elephant; stands asked, finally, supports what phant says giant he it is a turtle. When aback, “Ah, turtle, replies after that giant briefly quickly he is taken but way it all the down.” is turtles

reading that, exegesis, provi- the crucial Kennedy’s Justice jurisdictional sion of the text of requirement CWA was “significant nexus” between wetlands and wa- phrase ters. appears fact, however, that nowhere in the Act, but is taken cryptic from SWANCC’s characterization holding Bayview. interpretation of Riverside Our phrase opinions is both consistent with those and com- patible with what jurisdictional the Act does establish as the criterion: “waters of the United States.” are Wetlands “wa- ters of they the United “significant States” if bear the nexus” physical practical connection, which makes them as a mat- indistinguishable ter from waters of the United States. What other conceivably nexus could cause them to be “wa- ters of the United States”? Justice test is that Kennedy’s they, “either similarly alone or in combination with situated region, lands in significantly the physical, the chemical, affect biological integrity of readily other covered waters more added). ‘navigable,’” post, understood as (emphasis at 780 possible linguistic But usage what accept would that what- (alone combination) ever or in waters of the United affects States is waters of the United States?

Only by ignoring by assuming the text of the statute and nexus”) phrase that the (“significant prop- SWANCC can erly interpreted be in isolation from that text does JUSTICE reach the conclusion he has arrived at. Kennedy Instead limiting meaning by its apply- reference to the text it was ing, purports he to do so reference to what he calls the “purpose” purpose up statute. Its is to clean the wa- ters of anything the United might States, and therefore that “significantly purity “sig- affect” the of those waters bears a (he nificant says nexus” to those waters, and thus this, never it) but the text of the statute demands that he mean is those substituting pur- waters. This is the familiar tactic of pose freeing of the statute for its text, write a Court to different purpose. begin statute that achieves the same To with, as we have discussed earlier, clean water is not the pri- preservation of only purpose is the the statute. So ordinary decisions. responsibility land-use mary for state Kennedy’s 1251(b). no ac- test takes S. C. U. Justice fundamentally, purpose. however, More count of this purpose using that simply statute, test rewrites easy “significant been an gimmick It would have nexus.” Corps jurisdiction all Congress give over matter for lands) “significantly (or, dry all matter, for that integrity biological physical, of” chemical, affect the in- that, not do but It did waters of the United States. explicitly jurisdiction of the United to “waters stead limited States.” Kennedy’s disposition some of would disallow

Justice respect is a more moderate and in that excesses, statutory flouting of command than Justice Stevens’.15 respect, At least Jus- another it is more extreme. however, implausible reading the stat- can blame his tice Stevens giving upon Corps. His error consists of ute agency permits. more than reason deference Ken- Justice on his own. has devised his new statute all nedy, however, agency’s purports grudging acceptance of an be, It not a close-to-the-edge expansion powers, but rather the of its own 15 is, since Justice flouting It is unclear how much more moderate the Kennedy’s When, ex perfectly opaque. nexus” standard is “significant waters, and when are actly, affect” covered “significantly does a wetland Post, at 780. speculative its effects “in contrast . . . or insubstantial”? Kennedy Justice post, clearly except suggest, does not tell us — ” “ ‘ 782, (quoting Leibo generally degree’ “isolated” is a matter of Direc Nadeau, witz & and Future Isolated Wetlands: State-of-the-Science (2003)). observes, tions, 663, hopefully 23 Wetlands 669 As the dissent 808, likely to constrain an post, at such an unverifiable standard is mani statutory long has been so agency disregard language whose for the fact, before In both the consolidated eases by stating fested. that “[i]n existence suggesting possible the Court the contains evidence record above,” post, outlined significant according principles of a nexus to the Kennedy try it to its Justice agency, inviting a at the tips wink expansive reading again. same interpretation of the It is far from

most reasonable law. unless whatever affects waters is that, waters.

VIII applied wrong Because the standard to Sixth Circuit determine if these are “waters of the covered paucity States,” United and because of the of the record in both of these cases, determine, the lower courts should the first whether the instance, ditches or drains near each ordinary containing wetland are “waters” in the sense of (if are) relatively permanent they flow;and whether wet- question “adjacent” lands in are in the these “waters” possessing sense of a continuous surface connection that cre- boundary-drawing problem ates the we addressed River- Bayview. side

[*] ^{[*] [*]} judgments We vacate the in both Sixth Circuit No. 04-1034 04-1384, and No. remand both cases fur- proceedings. ther

It is so ordered. Roberts, Chief Justice concurring. years ago, rejected position

Five this Court authority Army Corps Engineers scope on the of its regulate Act, wetlands under the Clean Water 86 Stat. Agency seq. 1251 et amended, U. S. C. Solid Waste Cty. Army Corps Engineers, Northern Cook v. U. S. (2001) (SWANCC). Corps view that had taken the authority essentially explained limitless; was this Court its. limiting that such a boundless view was inconsistent with Congress Id., terms had used in the at 167-174. Act. response and the decision, to the SWANCC (EPA) Agency Protection initiated a rule- Environmental scope making of wa- to consider “issues associated with (CWA), light subject in Act ters that are to the Clean Water [SWANCC].” Supreme in of the S. Court decision U. (2003). agencies” “to “goal was of the Reg. The Fed. public in- regulations further the develop proposed that will juris- subject to CWA by clarifying are what waters terest through affording protection these waters full diction and resources consist- and State appropriate focus of Federal an Ibid. ent with CWA.” authority rulemaking delegated under a statute

Agencies leeway generous afforded Act are such as the Clean Water they interpreting are entrusted the statute the courts Re A. Inc. v. Natural U. S. to administer. See Chevron (1984). 837, 842-845 Council, Inc., 467 U. S. sources Defense ambiguous, but nonetheless broad, somewhat Given Congress employed in the clearly limiting Clean Water terms enjoyed plenty of Corps EPA have and the would Act, the developing operate notion of an outer bound some room to authority. of their to the reach rulemaking than re- proposed went nowhere. Rather

The authority light fining our decision in its view of its meriting providing guidance deference under SWANCC,and generous chose to adhere to its es- standards, the our power. up- scope sentially of the of its boundless view agency. today shot is another defeat for majority opinion commands a It is unfortunate that no Congress’ precisely limits on on how read Court regulated courts and reach of the Water Act. Lower Clean way case-by-case on a have to feel their entities will now certainly unprecedented. See basis. This situation (2003) (discussing Bollinger, 306, 325 v. 539 U. S. Grutter (1977)). is un States, 430 U. S. 188 What Marks v. United readily perhaps, the situation instance, in this is how usual could have been avoided.* narrow as Justice was not as scope proposed rulemaking

*The 795-796, opinion). See 68 Fed. suggests, post, (dissenting n. 4 Stevens (2003) any views as to whether (“Additionally, your we invite Reg. 1994 on which waters are existing regulations other revisions are needed to the CWA”); id., proposed (“Today’s [notice at 1992 jurisdictional under the in the Kennedy, Justice concurring judgment. require cases the Court to decide

These consolidated “navigable term waters” in the Water Act whether the Clean extends to wetlands that do not contain and are not navigable Agency In to waters that are fact. Solid Waste Cty. Army Engineers, Northern Cook v. U. S. (2001) (SWANCC), held, the Court under the circum- “ presented ‘navigable stances constitute wa- there, ” possess “sig- ters’ the a Act, under water or wetland must navigable nificant nexus” to waters that are or were in fact reasonably Id., or that could be so made. In 167, 172. plurality opinion the instant cases neither the nor the dissent by apply though test; chooses to this and Justice Stevens Appeals recognized applicability, the Court of the test’s it necessary did not consider all the factors to determine question requi- whether the lands in had, have, or did not my ought site nexus. view the cases to be remanded to Appeals proper Court consideration of the nexus requirement.

I Although plurality opinion both the and the dissent (hereinafter dissent) discuss back- Justice Stevens ground of these cases some a further discussion of detail, regulations, may clarify statutes, relevant facts analysis suggested here.

A (or Act) “objective” The of the Clean Water Act is “to re- physical, biological store and maintain the in- chemical, 1251(a). § tegrity To Nation’s waters.” 33 U. S. C. what, if rulemaking] public input any, light seeks on revisions SWANCC be that define ‘waters of might appropriate regulations to all entities S.’, the U. be of interest today’s thus would [notice] added)). to, such waters” agen- The discharging regulating, (emphasis SWANCC whether, sug- cies can decide for themselves as the dissenter to SWANCC. gests, response it was wise for them to take no action in “the dis- other end, statute, things, prohibits among as except provided of any by any person” charge pollutant 1311(a). the term “dis- here, § As relevant in the Act. means addition of of a “any any pollutant charge pollutant” 1362(12). source.” waters from any point waste, solid term is defined “dredged spoil, “pollutant” muni- incinerator residue, garbage, sewage sludge, sewage, ma- materials, chemical radioactive tions, wastes, biological rock, sand, wrecked or discarded terials, heat, equipment, waste industrial, cellar dirt and municipal, agricultural §1362(6). of the into water.” The discharged Secretary of of the Army Chief Army, acting through Engineers of issue “discharge Corps Engineers, may permits or fill material into the waters at dredged specified 1344(f) §§ § 1344(a), (c), (d); sites.” but see (categor- disposal certain forms ically “discharge dredged exempting 1311(a)). § fill Pursuant material” from under regulation § cer- States with assume 1344(g), qualifying programs may tain aspects Corps’ permitting responsibility. Apart or fill a material, from dredged pollutant discharges require from (EPA), the Environmental Protection permit Agency (and States’) which also oversees the qualifying per- 1344(c). 1311(a), 1342(a), §§ decisions. See Dis- mitting re- without an charge pollutants appropriate permit may § sult in civil or criminal 1319. See liability.

The term to be statutory applied interpreted two instant cases The out- term waters.” “navigable come turns on whether that describes cer- phrase reasonably tain wetlands the seeks to Under Michigan Corps regulate. the Act term waters’ means the waters of ‘navigable “[t]he 1362(7). § the United the territorial seas.” States, including In a “waters of has construed the term regulation Corps United States” to include waters only susceptible use interstate commerce —the traditional understanding States,” see, of the term waters of the United “navigable g., Appalachian Co., e. Elec. Power United States v. 311 U. S. (1940); 557, 563-564 Ball, 10 Wall. 406-408 The Daniel

(1871) particular and, of those waters also tributaries —but or their to those waters here, relevance (7) (2005). (5), 328.3(a)(1), §§ tributaries. 33 CFR they jurisdiction if views tributaries as within its §328.4(c); carry perceptible “ordinary high water mark.” (2000). Reg. ordinary high-water An mark is 65 Fed. by fluctuations of water a “line on the shore established by physical clear, characteristics such as natu- and indicated shelving, changes impressed in the char- bank, ral line on the vegetation, pres- soil, acter of destruction of terrestrial appropriate means that debris, ence of litter and or other surrounding consider the characteristics of the areas.” 33 328.3(e). CFR description,

Contrary plurality’s ante, 722, 734, to the They simply patches wetlands are not moist of earth. are are inundated or saturated defined “those areas that ground frequency suffi- surface or water at a and duration support, circumstances do cient to and that under normal adapted support, prevalence vegetation typically for life generally in include saturated soil conditions. Wetlands 328.3(b). § swamps, bogs, The and similar areas.” marshes, Corps’ including over 100 Manual, Delineation Wetlands interprets pages guidance Corps officers, this of technical (1) plant spe- require: prevalence of definition of wetlands to typically adapted deter- conditions, soil cies to saturated and Wild- mined in with the States Fish accordance United Species in Plant that Occur life Service’s National List of (2) meaning hydric saturated, soil that Wetlands; soil, during growing ponded the sea- or for sufficient time flooded, upper lacking oxygen, in the anaerobic, son to become (3) requiring hydrology, generally part; a term wetland during at the surface or saturation to continuous inundation years. percent growing in most See season least five (on- Report Program Y-87-1 Technical Research Wetlands (Jan. 1987), edition), http://www.saj pp. .usace. line 12-34 (all army.mil/permit/documents/87manual.pdf Internet mate- 16, 2006, as visited and available Clerk of rials June file). Corps’ regulations, Court’s case Under by tributaries, Act, and thus covered are they “separated even if are from other waters of the United by berms, natural river barriers, man-made dikes or States 328.3(c). beach dunes and the like.”

B Rapanos Court, The first consolidated case before the v. States, to a civil enforcement ac 04-1034, United No. relates tion initiated in the Dis United States United States Michigan against trict Court for the Eastern District of parcels Michigan. owners of three land near Midland, parcel, Salzburg roughly first site, known as consists of applying Court, 230 acres. The District defini expert testimony tion of found on wetlands, based that the Salzburg site included 28 acres wetlands. The District Salzburg Court further found “the wetlands have a sur face water connection to tributaries of the Kawkawlin River Saginaw ultimately which, turn, flows into the River and App. into Lake Huron.” to Pet. for Bll. from Cert. Water evidently spills Hoppler just the site Drain, into the located property, Hoppler north of the which carries water into the naviga Creek and River, thence into Kawkawlin which is carp spawn ble. A state official testified that he observed ing just indicating property, in a ditch north of the a direct Saginaw Bay surface-water connection from the ditch to of Lake Huron. parcel, site,

The second known as the Hines consists Road acres, which the District Court found included 64 acres of wetlands. The court found that the wetlands have a Drain, surface-water connection to the Rose which carries navigable waterway. water into the Tittabawassee a River, parcel, The final site, called the Pine River consists of some 200 acres. The District Court found that 49 acres were wet- the a surface-water connection linked wet- lands and that nearby Pine which flowsinto Lake Huron. River, lands to Rapanos Salzburg times, At all relevant owned John company Hines site; a he controlled owned the Road site; Rapanos’ company (possibly and wife and a she controlled entity) connection with another owned the Pine River site. parties petitioners All these are here. December Rapanos, hoping shopping center, Mr. construct a asked Department inspect Michigan Resources to Natural Salzburg Rapanos site. A state official informed likely regulated Rapanos wetlands, while the site included proceed project could with the if the wetlands were delin- (that permit preserved) eated identified or if a were is, and Pursuing option, Rapanos obtained. delineation hired survey property. wetlands consultant to results evidently displeased Rapanos: Informed that the site in- Rapanos wetlands, cluded between 48 and 58 acres of al- legedly “destroy” threatened to the consultant unless he report. Rapanos eradicated all then traces his ordered earthmoving landclearing $350,000-worth of and work that Salzburg filled in 22 of the 64 wetlands acres on the site. He permit despite receiving did so without a cease-and- At the desist orders from state officialsand the EPA. Hines again Road and Pine River construction con- sites, work— compliance ducted in violation of orders— state federal respectively. acres, an altered additional and 15 wetlands against brought charges The Federal criminal Government Rapanos. the United here, however, In the suit at issue against alleged Water Act States civil violations of Clean Rapanos petitioners. Specifically, the all the Government jurisdictional discharged petitioners into claimed that fill respond requests information, wetlands, failed to ignored compliance 33 U. C. orders. See S. administrative 1319(a). §§1311(a), 1318(a), 13-day trial, the After a bench findings and, on that District made the noted earlier Court Corps’ jurisdiction upheld on the over wetlands basis, 764 parcels. ruled in the the merits the court Govern-

three On finding three occurred at all favor, that violations ment’s rejected the court sites, however, As to other sites. two jurisdiction, holding Corps’ that the claim Government carry proving the existence failed to its burden of had (These three-part regulatory definition. under the wetlands issue.) parcels longer The United States are no two Appeals F. 3d for the Sixth affirmed. 376 Court Circuit (2004). granted consider This Court certiorari to jurisdiction Salzburg, Hines over wetlands on (2005). and sites. 546 S. 932 Road, Pine River U. in Carabell, 04-1384,

The No. case, second consolidated parcel shaped triangle consisting right volves a like a and some 19.6 15.9 of which are forested wetlands. 257 acres, (ED 2003). Supp. property 2d The is lo F. Mich. roughly 430-square- Clair, mile from cated one Lake St. a Michigan popu mile lake located between and Canada that is fishing boating produces percent lar for some sport caught Lakes, fish Great see Brief for Ma- County, right- Michigan, as The comb Amicus Curiae 2. angle property corner located to of the the northwest. hypotenuse, southwest, runs The which from northeast alongside separates property lies a man-made berm that is, from a ditch. At least under current conditions—that deposit without the of fill in the wetlands that the landown always, propose ordinarily, ers berm if not blocks —the surface-water from the into the ditch. But flow (administrative App. hearing testimony 186a consult cf. indicating “you seeing ant for would start some Carabells storm”). year overflow” a “ten the northeast corner Near property, the ditch connects with the Sutherland Oemig continuously throughout Drain, which carries water year empties in turn into Auvase creek Creek. empties into its the ditch end, Lake St. Clair. At southwest empty connects to ditches that into the Auvase Creek other and thence into Lake St. Clair. petitioners sought

In 1993 per- Keith and June Carabell Michigan Department mit Quality from the of Environmental (MDEQ), permitting which has assumed functions of the § Corps pursuant 1344(g). hoped to Petitioners to fill in the wetlands and Although construct 130 condominium units. permit, denied the MDEQ a State Administrative Law Judge agency approve directed plan, an alternative proposed by the Carabells, that involved the construction of 112 proposal filling units. This called for in 12.2 acres of property creating ponds while retention on 3.74 acres. objected Because the EPA permit, jurisdiction had to the § over the case Corps. 1344(j). transferred to the See district office concluded that the Carabells’ property “provides storage water that, functions if de- stroyed, could result in an deg- increased risk of erosion and quality radation of water Sutherland-Oemig Drain, Auvase Creek, and Lake Id., St. Clair.” at 127a. The dis- permit, trict office denied Corps upheld and the the de- appeal. nial an administrative challenging The Carabells, Corps’ jurisdiction both the permit and the merits of the de- sought judicial pursuant nial, review to the Administrative §706(2)(A). Procedure Act, 5 U.S.C. The United States District Court for the Michigan Eastern granted District of summary judgment Corps, Supp. (2003), to the 257 F. 2d 917 and the Appeals United States Court of for the Sixth Circuit (2004). affirmed, 391 F. 3d 704 granted This Court certio- jurisdictional rari to consider question. 546 U. 932 S. (2005).

II Twice before the Court “navigable has construed the term waters” in the Clean Water Act. In United States v. River Bayview (1985), side Homes, Inc., 474 U. S. the Court upheld Corps’ jurisdiction adjacent over wetlands navigable-in-fact waterways. property Id., at 139. The Bayview, Riverside like the wetlands in the Carabell case now before roughly the Court, was located one mile from Bayview v. Riverside Clair, Lake see United States St. (CA6 1984) (decision re Inc., 729 2d on Homes, F. Bayview), though case, in that unlike Car view in Riverside part that di abell, the lands at issue formed of wetland rectly navigable-in-fact S., at 131. creek, abutted a U. regulatory provisions effect, remain in had important perform functions such concluded that wetlands filtering purifying draining water into 320.4(b)(2)(vii)(1985), § slowing bodies, 33 the flow of CFR prevent flood lakes, rivers, runoff into and streams so as (v), §§320.4(b)(2)(iv), ing providing critical erosion, 320.4(b)(2)(i). aquatic species, habitat for animal 474 U. “[a]n Recognizing agency’s construction of 134-135. charged enforcing a statute it is with is entitled to deference expressed if it is reasonable and in with the in conflict Congress,” (citing id., tent of at 131 Chemical Assn. v. Mfrs. Council, Inc., Natural Resources U. S. Defense (1985), and Chevron U. A. Inc. v. Natural Resources De S. (1984)), Council, Inc., 467 the U. S. 842-845 Court fense Corps’ ecologicaljudgment held that “the the relation about ship adjacent provides between waters and their wetlands adequate legal judgment an basis for a wet may lands be the at Act,” S., defined as waters under U. question reserved, however, 134. The Court the of the Corps’ authority regulate adja wetlands other than those open id., cent to waters. at 8. 131-132, See n. validity SWANCC,

In the Court considered Corps’ jurisdiction ponds over and mudflats that were iso- being in lated the sense of unconnected to other waters cov- property ered at issue Act. 531 U. at 171. The gravel pit mining operation was an abandoned sand and “evolv[ed] where trenches” into a “remnant excavation had scattering permanent ponds.” Id., and seasonal at 163. Asserting jurisdiction pursuant regulation called the to a “Migratory Corps argued isolated Rule,” Bird that these (and ponds “naviga- were “waters of the thus United States” Act) they ble waters” under the because were used as habitat by migratory rejected Id., at 164-165. The birds. Court theory. significant “It nexus this was between wetlands ” ‘navigable “that held, the Court informed our waters/ Bayview [Act] reading in Id., Riverside Homes.” lacking respect 167. Because such a nexus was with to iso- ponds, plain lated held that the text of the statute Court permit Id., did not action. 172. Bayview

Riverside and SWANCC establish the frame inquiry work for the in the cases now before the Do Court: Corps’ regulations, applied as to the wetlands in Carabell parcels Rapanos, and the three constitute a rea interpretation “navigable sonable waters” as in Riverside Bayview or an invalid construction as in Taken SWANCC? together these cases establish that some as ex instances, emplified by Bayview, Riverside the connection between a nonnavigable may water or wetland and a potentially may be so close, close, so that the deem “navigable the water or wetland a water” under the Act. exemplified by may other instances, SWANCC, there be significant jurisdic little or no connection. Absent a nexus, lacking. plurality tion under the Act is Because neither the requirement, sepa nor the dissent addresses the nexus this opinion, my respectful necessary. rate view,

A plurality’s opinion begins premise. from a correct As plurality points Bayview out, in holds, and as Riverside enacting Congress regulate the Clean Water Act intended to navigable at least some waters that are in the traditional Bayview, supra, Ante, 731; sense. at Riverside at see 133; supra, supported SWANCC, also at 167. This conclusion is by congressional pro “the evident breadth of concern for quality aquatic ecosystems.” tection of water River Bayview, supra, Illinois, side see also Milwaukee 133; v. (1981) (describing U. S. the Act as “an all- encompassing program pollution regulation”). It is of water by statutory explicit compelled text, further for the text is coverage nonnaviga- extending in of the Act to some provision allowing to assume some ble waters. In a States (an regulatory option Michigan functions of the has exercised), issuing permits the Act limits for: States discharge dredged

“the or fill material into the navi- (other gable pres- waters than those waters which are ently susceptible used, or are to use in their natural improvement condition or reasonable as a means to transport foreign interstate or commerce shoreward to ordinary high including their water all mark, waters subject which are to the ebb and flow the tide shore- ordinary high higher ward to their or mean mark, high including water mark on the west coast, thereto) jurisdiction.” within its 33 U. S. C. § 1344(g)(1). “navigable apart

Were there no Clean Water Act waters” “presently “susceptible from waters used” or to use” inter begins state commerce, clause, the “other than” which long parenthetical delegation statement, would overtake the authority provision Congress, at the it makes outset. meaning follows, must have intended broader clause, waters. The mention of wetlands in the “other than” plain moreover, makes fall least some wetlands within scope “navigable of the term waters.” See Riverside Bay supra, view, at 138-139, and n. 11. beginning plurality proceeds

From this reasonable impose Act; limitations, two limitations on the but these it support language is here submitted, are without in the purposes interpreting of the Act First, or our cases it. dictionary ‘[a]s because the defines “waters” to mean “water forming geographical found streams and bodies features flowing moving [and] such as oceans, rivers, lakes,’ or ‘the making up streams or masses, floods, of waves or such ” (quoting New International ante, Webster’s at 732 bodies/ 1954) (hereinafter (2d Dictionary Sec- ed. Webster’s ond)), phrase “naviga- plurality would conclude that only permits Corps jurisdiction over ble and EPA waters” “relatively standing flowing permanent, or bodies of water,” category plurality’s ante, in the at 732—a that view includes carry rivers, is, “seasonal” that rivers that water continu- ously except during “dry not months,” but intermittent or ephemeral streams, ante, 732-734, Second, at and n. 5. plurality only asserts that fall within Act if they bear “a continuous that surface connection bodies are right” 'waters of the United their own States’ waters, — satisfy plurality’s requirement permanent that that is, standing water Ante, flow. continuous 742. plurality’s requirement permanent standing

The first — period water or continuous a flow, at least for of “some practical ante, months,” at 732-733, and n. 5—makes little sense in quality. a statute concerned with downstream water The if merest trickle, continuous, count a would “water” subject regulation, thundering to federal while torrents irregular through dry intervals otherwise channels would Though plurality presume not. seems to such ir- regular insignificant flows are too to be of concern a stat- may ute always focused on “waters,” be true. parts provide Areas in the western of the Nation some ex- amples. Angeles ordinarily, River, Los for instance, only carries a trickle of water and often looks more like a dry roadway g., Gumprecht, See, than a river. e. B. The Los Angeles Life, River: Its Death, and Possible Rebirth 1-2 (1999); City Angels’ Signature Tapped Martinez, River Chicago Apr. p. Rebirth, Tribune, section 10,2005, 1, 8. Yet periodically it powerful releases water volumes so and de- structive that it has been encased in concrete and steel over length Gumprecht, supra, of some 50 miles. See at 227. Though particular waterway might satisfy plural- this ity’s often-dry it test, is illustrative of what watercourses 770 County g., See, e. flow. rain waters when

can become Divi- Resources Dept, Works, Water Angeles Public Los Daily Report, Dis- Runoff, Hydrologic 2002-2003 sion: at Urban- CREEK charge, CANYON F377-R BOUQUET Saugus, Bouquet CA, Creek Near 11107860 Avenue dale (indi- http://ladpw.org/wrd/report/0203/runoff/discharge.cfm year but carried of the cating flow for much carried no creek 2003). per 12, on Feb. feet second 122 cubic irregular Congress line to exclude could draw a sure, To be suggests nothing it has done waterways, in the statute but dictionary reading defi- opposite, full a so. Quite permanence: emphasis plurality’s on precludes the nition may inundation,” Webster’s mean “flood or term “waters” impermanent definition. events that are 2882, Second adjective “navi- although Act’s use of the of course the Thus, waterways floods, than gable” rather indicates a focus on ante, 732, at Congress’ “water,” “waters” instead of use of “relatively per- carry necessarily the connotation does not (And standing flowing water,” ibid. bodies manent, contrary plurality’s suggestion, 4, there ante, 732, at n. to the “ dictionary the ‘floodor inunda- in the is no indication any poetry.) event, even limited to tion’” definition is granting plurality’s preferred “waters” definition—that forming geo- ‘[a]s in streams and bodies means “water found ” [and] ante, lakes,’ graphical rivers, oceans, features such as 2882) (quoting is cor- dissent at 732 Webster’s Second —the flow can constitute rect that an intermittent to observe “‘[a] of water or current or course stream, the sense ” (quot- flowing 6 ante, at n. fluid, earth,’ other on the 2493), post, flowing. ing it is See Second while Webster’s “ (also noting phrase ‘intermittent use of the Court’s ” Mfg. Dickey Clay Co., v. stream’ Harrisonville W.S. (1933)). can reason- It follows that U. S. imperma- ably interpret paths of such the Act to cover nent streams.

Apart dictionary, plurality from the invokes Riverside Bayview support interpretation its that the term “waters” misplaced. is so confined, but this reliance is To be sure, compared Court there wetlands to “rivers, streams, and hydrographic other conventionally features more identifiable quite ‘waters.’” 474 S.,U. It 131. a stretch to hydrographic claim, however, this mention of features “ “echoe[s]” dictionary’s ‘geographical reference to fea- [and] tures such as oceans, rivers, lakes.’” Ante, 2882). (quoting Webster’s Second In fact the Riverside Bayview opinion dictionary does not cite the definition on plurality phrase which “hydrographic relies, and the fea- just tures” carry- could as well refer to intermittent streams ing navigable substantial flow to waters. See Webster’s (defining “hydrography” “[t]he Second description as study spe- seas, lakes, rivers, and other waters; cifically] [t]he . investigation . . measurement of flow and especially] of the behavior of streams, with reference to the waters”). control or utilization of their plurality’s attempt Also incorrect support is the to draw statutory from “point “any definition of source” as dis- conveyance, including cernible, confined and discrete but not any pipe, limited to ditch, channel, tunnel, conduit, well, dis- rolling crete fissure, container, stock, concentrated animal feeding operation, floating or vessel or other from craft, pollutants may discharged.” which are be 33 U. S. C. 1362(14). § regulatory This definition is central to the Act’s “discharge pollutant” structure, for the term of a is defined part “any any pollutant relevant to mean addition of 1362(12). navigable any point waters from source,” Inter- preting point-source plurality presumes, definition, the point-source examples first, that the describe “watercourses through typically which intermittent waters and sec- flow,” point “separate ond, that sources and waters are categories.” and distinct Ante, at From this the 735-736. negative navi- plurality inference, that a sort of concludes, may un- gable The conclusionis be intermittent. waters requires Nothing point-source an definition in the sound. day night and could flow flow. Polluted water intermittent yet qualify as a pipe, still channel, or conduit from a likely any contrary point exclude, would conclusion source; sewage among things, from treatment effluent streams other require plants. read to a even were the statute result, As continuity navigable waters, certain water bodies of flow for conceivably point and a a source water. could constitute both point any observes, fact that At dissent rate, plurality’s carry may flowundermines sources continuous may under the Act not be conclusion that covered “waters” post, at discontinuous. See 802. plurality’s of wetlands second limitation —exclusion jurisdic-

lacking other a continuous surface connection to unpersuasive. begin plu- with, To tional waters —is also rality wrong suggest “indistinguish- that wetlands are they able” from waters to which bear surface connection. may precise boundary impre- Ante, be at 755. Even if the question bog swamp cise, a a The is different from river. bog, permit swamp, is what circumstances or other nonnav- igable “navigable the wetland to constitute a water” under §1344(g)(1), nothing else, if is sometimes Act—as indicates possible, supra, Bayview see at Riverside ad- 767-768. question that and its is with the dressed answer inconsistent theory. authority plurality’s upholding Corps’ in There, the regulate adjacent “wetlands to other bodies water over Corps jurisdiction,” which the deemed it irrel- the has Court creating find[s] evant the whether “the moisture wetlands ... adjacent S., its the source in bodies of water.” 474 U. at 135. adjacency further that could serve as a Court observed regulation valid that basis for even as to “wetlands are ecosystem adjacent significantly with intertwined the wa- terways.” Id., reasonable,” at 9. “If it is the 135,n. Court explained, majority “for in the the conclude that adjacent significant of cases, wetlands have effects on water quality aquatic ecosystem, can and the its definition stand.” Ibid. Bayview in

The Court Riverside is note, true, did it the difficulty defining begins,” where “water ends and land problem id., at 132, and the Court that one cited reason deferring adjacent for to the that view wetlands could recognition constitute waters. Given, however, the further Bayview per- in Riverside that an overinclusive definition is holding missible when it even reaches wetlands moisture dis- id., 135, connected from bodies, 9, at n. Bayview's, difficulty Riverside about observations the of de- fining edge the water’s be cannot taken to establish that boundary beyond when a evident, clear the boundary Corps’ jurisdiction. outside fall the Bayview

For the same reason Riverside cannot be also rejecting only proposition, accepted by read as the Court Appeals in that case, that wetlands the Act covered originating neighboring must contain moisture water ways. Appeals id., at See 125, 134. Since Court of had accepted theory, naturally it. Yet Court addressed reasoning to view the decision’s as limited to that issue—an interpretation plurality urges here, ante, at n. 13— again opinion’s would overlook on broader focus wet “significant aquatic quality lands’ effects on water ecosystem,” any 474 event, U. n. 9. even were reading Bayview this of Riverside it offer no correct, would support plurality’s requirement proposed for of a “contin uous connection,” ante, surface 742. The River Court Bayview rejected origination proposition side flooding necessary jurisdiction was It over wetlands. support suggest origin did not that a flood-based would jurisdiction; presumed opposite. indeed, it See 474 (noting Corps’ “even for S.,U. at 134 that the view was valid permeation” flooding are not the that result or added)). (emphasis say, a connection Needless to continuous from to result moisture in wetlands is not necessary floods. well exist only during connection might flooding —the SWANCC, likewise, does not plurality’s support SWANCC’s holding surface-connection requirement. S., at waters,” intrastate 531 U. isolated, “nonnavigable, over waters” is not an implicit are not explicit “navigable of Riverside Bayview’s approval as a of adjacency ruling In rejecting factor in the Corps’ jurisdiction. determining the isolated claimed over authority ponds the Corps’ SWANCC, adjacent nonnavigable the Court distinguished Bay in Riverside addressed waters such as the wetlands view. 531 U. 170-171. Bayview

As Riverside adjacency recognizes, Corps’ Indeed, in some of its standard is reasonable applications. Act, from the structure view draws support while the surface-water-connection requirement plurality’s does not. on the

As the Act’s above, discharge discussed prohibition cov- waters, 1311(a), 33 U. into S. C. pollutants navigable of toxic materials such as sewage, ers both discharge material material, chemical and radioactive waste, biological sand, dirt, cellar rock, and the discharge dredged spoil, All substances are defined as and the like. these pollutants the Act. whose into waters violates discharge (12). treat- 1362(6), §§ One reason for 1311(a), parallel of fill material can ment be that impair may discharge otherwise, downstream water plurality argues quality. or fill material “does not normally asserting dredged Ante, As the dissent wash downstream.” 744. points mat- as an out, this seems empirical proposition questionable post, that new or ter. at 806-807. It seems See plausible or roots from other fill, vegeta- loose not anchored by grass tion, waterways adjacent could travel downstream through that the to a at the least this is a factual wetland; possibility Silt, than can the can better assess plurality. Corps’ experts factor sources, human is a whether from natural or major environments, it alter waterways, and may clog aquatic g., e. See, limit life of dams. and useful ecosystems, Unloved, 5, But N. Y. June Fountain, Unbuilt, Times, Not 4, 1; DePalma, a 2005, 3, section col. River Rebuilding p. For the Y. Mussel, Times, Love N. Upstate, Tiny Apr. 26, 2004, 2; section B, 1, col. Can Be p. MacDougall, Damage Los Irreversible, Times, 1, June 19, Angeles pt. p. col. 4.

Even however, granting, plurality’s assumption fill material will stay treatment of put, parallel Congress’ fill material and toxic serve another pollution may purpose. Bayview, Riverside As the noted in Court “the has concluded that wetlands serve to filter and may purify water into bodies of draining water, 33 CFR 320.4(b)(2)(vii) (1985), and to slow the flow of surface runoff into lakes, rivers, and streams and thus and prevent flooding erosion, 320.4(b)(2)(iv) see (v).” §§ and 474 U. 134. Where wetlands these perform and filtering runoff-control functions, them filling increase downstream may pollution, much as a of toxic discharge would. Not will pollutants only water no dirty be stored and longer filtered but also the act itself filling draining cause the release of may nutri- ents, toxins, and that were pathogens neutralized, trapped, amenable to perhaps or filtering detoxification in the wetlands. See U. S. Office Congress, Assess- Technology ment, Wetlands: Their Use and Regulation, OTA-O-206, (Mar. 43, 48-52 pp. 1984), http://govinfo.library.unt.edu/ota/ (hereinafter OTA). OTA_4/DATA/1984/8433.pdf many cases, moreover, in wetlands from filling another separated a berm can mean floodwater, impurities, runoff that would have been stored or contained the wet- lands will instead flow out to these major waterways. With concerns in mind, the definition is a rea- adjacency one, sonable for it be the absence of an may interchange waters to the and fill that makes prior dredge activity pro- tection of the wetlands critical to the scheme. statutory opinion the Act’s plurality’s inconsistent with

In sum the plural- purpose. As a fallback text, structure, compel its read- ity suggests canons would that avoidance In Ante, at 737-738. ing unclear. if the text were even rejecting assertion the as one reason SWANCC, ponds the jurisdiction there, at issue Court over the isolated Corps’] regulations” [the “application that this observed questions significant au- Clause Commerce would raise thority regulation. encroach on traditional state land-use and ibid., observed, and as the at 174. As SWANCC U. plurality points ante, Act states that here, out the preserve, Congress recognize, “[i]t policy to is the responsibilities rights protect primary of States the plan [and] prevent, pollution, the eliminate reduce, and development resources,” and use ... of land and water 1251(b). pro- in cited this U. C. The Court SWANCC S. supporting juris- as a vision evidence that clear statement raising applications constitutional and federalism diction lacking. atS., was 531 U. 174. difficulties support do not the The concerns addressed SWANCC plurality’s interpretation SWANCC, of the Act. inter- significant navigable preting require Act to a nexus with the applications involving wa- waters, the Court avoided —those likely, significant appeared a ters without nexus—that category, to constitutional difficulties and federal- raise interpreta- plurality’s the Here, contrast, ism concerns. it raises. On the tion does not fit avoidance concerns lacking, is hand, a surface-water connection one when plurality jurisdiction that abut over wetlands forecloses though wa- navigable-in-fact such waters —even authority. traditionally subject ters were to federal On (however by saying re- hand, other Act covers mote) possessing continu- connection with a a surface-water (however small), plurality’s reading ously flowing stream permit applications far from tradi- of the statute as would beyond authority it deems as are the waters tional federal assuming, reg Even that then, statute’s reach. federal nonnavigable waterways ulation of remote wetlands and notwithstanding would raise a difficult Comerce Clause issue aggregate quality, those on waters’ effects national water but (1942); Filburn, cf. Wickard v. S. 111 see U. also infra, plurality’s reading responsive at 782-783, the “responsibilities rights,” this concern' forAs States’ §1251(b), noteworthy plus it is that 33 States District of litigation asserting Columbia have an filed amici brief in this important Clean Water Act is to their own water policies. See Brief for State et of New York al. These 1-3. among things, protects note, amici other that the Act down pollution they stream States from out-of-state cannot regulate. themselves Ibid. plurality’s

It bears mention also that the overall tone and approach the characterization of acres of wetlands de- —from “backfilling struction as fields,” ante, . . . wet at to the rejection Corps authority of drainage over “man-made “dry arroyos” regard ditches” and without to much how they periodically carry, suggestion, ante, to the seemingly contrary Congress’ judgment, discharge to of inconsequential adjacent waterways, fill material is ante, unduly at 744, and 11—seems n. dismissive of the inter- by Impor- ests asserted the in United States these cases. public by tant are interests served the Act in Clean Water general protection particular. and of the To give just example, one amici here have noted that nutrient- hypoxic, Mississippi rich runoff from the River has created a oxygen-depleted, “dead the of that at zone” Gulf Mexico approaches Jersey. times the size of Massachusetts and New Managers Brief 21-23; for Association State et Wetland al. Brief for Environmental evi- Law Institute 23. Scientific play dence indicates that wetlands a critical role in control- ling g., filtering and e. See, 43, 48-52; Tiner, runoff. OTA R. Swampland: Search A and Field Wetland Sourcebook (2d 2005); Rapid Guide 93-95 Re- Hamilton, ed. Whitmire & Wetland Sedi- in Freshwater moval of Sulfate Nitrate (2005). plu- It is the Quality true, as 34 Env. ments, J. provide no concerns rality that environmental indicates, statutory ante, at 745- disregard text, in the limits reason to my plurality’s opinion correct is not a but in view the 746, reading impose, plurality the would The limits of the text. Congress’ purposes give to insufficient deference moreover, authority enacting the the Act and to Clean Water statutory implement that mandate. Executive plu- go saying that the Finally, because it should without only per- interpretation rality presents Act as the its Corps plain reading text, ante, 739,742, missible theory, plurality’s adopt discretion, lack under would contrary suggests regulations. that if Justice The Chief regulations Corps after EPA had issued new oper- they “enjoyed plenty of room to would have SWANCC developing reach notion an outer bound ate in some authority” litigation of of their thus could have avoided opin- today. (concurring Ante, the ion). we at 758 issues address necessarily opinion be true under the That would joined. rulemaking could has New The Chief Justice only disagreement if the had have averted the here anticipated unprecedented reading of Act that the plurality advances.

B plurality requirements into the reads nonexistent While requirement the reads a central out— Act, the dissent namely, “navigable” requirement in the that the word “navi- importance. Although gable given the waters” be some Congress’ language held statute’s invokes Court has that the authority suscep- navigable in fact or traditional over waters being (citing SWANCC, S., 531 U. at 172 so, tible made 407-408), Appalachian Power, the would S., 311 U. at dissent permit alongside regulation lie federal whenever wetlands insubstantial, that even- drain, ditch however remote and tually may navigable waters. The def- flow into traditional Corps’ interpretation erence owed to the of the statute does not extend so far.

Congress’ difficulties, choice of words creates for the Act contemplates regulation “navigable of certain waters” that navigable. Supra, in are not fact at the Nevertheless, 768. “navigable” given word in the Act must be some See effect. supra, SWANCC, Thus, at 172. in SWANCC Court rejected jurisdiction assertion of over isolated ponds bearing and mudflats no evident connection to navigable-in-fact Bayview, in waters. And Riverside while ‘navigable’ the Court indicated that “the term as used in the import,” up- Act is of limited relied, 474 U. it in holding jurisdiction, Corps’ judgment on the that “wetlands adjacent to lakes, rivers, streams, and other bodies of water may integral parts aquatic function as of the environment creating even when the moisture the wetlands does not find its source in the water,” id., bodies 135. implication, “integral of course, was that wetlands’ status as parts aquatic significant is, environment”—that their navigable nexus with waters —was what established Corps’ jurisdiction over them as waters the United States. Bayview with

Consistent SWANCC and Riverside and give “navigable” meaning, with the need the term some Corps’ jurisdiction depends upon over wetlands the ex- significant ques- istence of a nexus between wetlands tion and waters in the re- traditional sense. The quired goals must nexus be assessed terms statute’s purposes. Congress and enacted the law to “restore physical, biological integrity chemical, maintain the 1251(a), pursued waters,” Nation’s 33 U. C. and it S. objective by restricting dumping filling “naviga- 1311(a),1362(12). §§ ble respect waters,” to wetlands, With regulation rationale Clean Water Act as the is, recognized, perform has can critical functions integrity related to the of other waters —functions such as pollutant trapping, storage. flood control, and runoff 320.4(b)(2). possess requi- Accordingly, wetlands the

CFR statutory phrase the “navi- come within and thus nexus, site gable combination either alone or waters,” wetlands, if the significantly region, af- similarly lands in the situated with integrity biological other physical, of and chemical, fect the “navigable.” readily as more understood covered waters quality are effects on water When, contrast, wetlands’ fairly they speculative fall the zone insubstantial, outside “navigable encompassed by statutory term waters.” acknowledges ecologi- Although the that wetlands’ dissent for are the basis cal functions vis-á-vis other covered waters Corps’ regulation post, of it concludes them, phrase “navigable ambiguity waters” allows in the reaching Corps to as all “non-isolated construe statute just wetlands,” it the Act to reach the wetlands construed Bayview, navigable-in-fact adjacent to waters in Riverside though, Corps’ post, This, incorrect. The see at 796. seems adjacency theory jurisdiction in these consolidated cases— tributaries, to and however remote insubstantial —raises go beyond holding Bayview; Riverside concerns that jurisdiction Corps’ rest on so the assertion of cannot that case. adjacent applied navigable-in-fact to wa-

As wetlands to jurisdiction Corps’ rests ters, conclusive standard upon ecologie interconnection, a reasonable inference of jurisdiction for those is sustainable the assertion wetlands adjacency showing That the hold- under the Act alone. Bayview. although ing Furthermore, the Riv- Riverside Bayview question erside Court reserved authority adjacent are not bodies over “wetlands that any open 131-132, event water,” S.,U. n. adjacent no other than addressed factual situation navigable-in-fact may case that Riv- it well be the waters, jurisdiction reasoning supporting Bayview’s without erside — equally beyond apply any inquiry adjacency to wet- —could Through regu- major certain tributaries. lands adjudication, Corps may identify to cat- lations or choose (either egories their volume of flow that, of tributaries due to annually average), proximity navigable on to waters, or their significant enough considerations, other relevant are adjacent likely, majority wetlands to them are in the of cases, perform important aquatic system to functions for an incor- porating navigable waters. Corps’ existing pro- tributaries, standard for however, Corps

vides no such assurance. As noted earlier, deems tributary a water a it if feeds into a traditional (or thereof) tributary possesses ordinary a an high-water mark, a defined as “line on the shore established

by by [certain] the fluctuations physi- of water and indicated 328.3(e). supra, cal characteristics,” See at 761. This presumably provides rough standard measure of the vol- regularity ume Assuming subject of flow. it is to rea- sonably application, consistent but see U. S. General Ac- counting Report Office, Chairman, to the Subcommittee on Energy Policy, Regulating Natural Resources and Affairs, Representatives, Committee on Reform, House of Waters Corps Engineers and Wetlands: Needs to Evaluate Its Determining District Office in Practices Jurisdiction, GAO- (Feb. 2004), pp. 04-297, http://www.gao.gov/new.items/ 3-4 d04297.pdf (noting among Corps in variation results district offices), may provide it well a reasonable measure of whether specific minor tributaries bear a sufficient nexus with other regulated “navigable waters to constitute waters” under the Act. Yet the breadth of this standard —which seems to regulation leave wide drains, room for ditches, and any navigable-in-faet carry- streams remote from water and ing only precludes minor water volumes toward its it— adoption adjacent as the determinative measure of whether likely play important integrity wetlands are an role aquatic system comprising navigable an waters as tradi- tionally many adja- Indeed, understood. cases wetlands might appear cent to tributaries covered this standard navigable-in-fact than waters were little more related scope beyond the ponds Act’s held to fall the isolated Wetlands: Nadeau, Isolated Leibowitz & SWANCC. Cf. Directions, 23 Wetlands and Future State-of-the-Science (2003) generally (noting a matter of that “‘isolated’ is 669 degree”). regulate When the seeks to may rely adjacency to navigable-in-fact waters, on estab- it specific regulations, jurisdiction. how- Absent more lish its significant a a nexus on case- ever, must establish the by-case regulate on it to wetlands based basis seeks when potential adjacency nonnavigable the to tributaries. Given showing Corps’ regulations, this nec- is overbreadth of the applications essary the statute. to of avoid unreasonable particular adequate wet- established a Where an nexus is may permissible, a of as matter administrative land, it be necessity, presume covered for other convenience or to status region. comparable issue, however, in That is wetlands any by agency nor neither raised these facts addressed requirement regulation nexus out- that accommodates the here. lined interpretation Act does not raise federalism

This presump- support a Commerce Clause concerns sufficient significant-nexus against adoption. be sure, tion To its requirement perfectly may align ex- with the traditional not authority. regulation in tent Yet most cases of federal sig- possess to tributaries and a are navigable waters will raise no serious nificant nexus with difficulty. County v. Cf. Pierce constitutional or federalism (2003) legisla- (upholding federal Guillen, 537 U. 147 S. safety improving in the channels com- tion “aimed at merce”); Guy Phillips Co., F. Atkinson ex rel. v. Oklahoma (1941) (“[Jjust over 525-526 control U. S. may non-navigable parts essential or desirable of a river be key portions, may navigable so of the the interests in whole or on a stream be found flood control [T]he part its tributaries .... exercise in flood control on power Congress regulate granted interstate com- may by appropriate merce be and needful control of aided agencies though which, intrastate, activities and commerce”). affect that explained

As and as exem- earlier, moreover, plified by significant-nexus prevents SWANCC,the test itself problematic applications supra, of the statute. at 776; See legitimate possibility U. 174. Commerce Clause and federalism concerns in some circumstances does require adoption interpretation departs of an all cases from the text Act’s and structure. See Gonzales v. (2005) (“[W]hen general regulatory Raich, 545 U. 1,S. a statute bears substantial to commerce, relation the de arising minimis character of individual instances under that (internal consequence” quotation statute of no marks omitted)).

Ill In both the consolidated cases before the Court record suggésting possible contains evidence sig- existence of a according principles nificant nexus to the outlined above. many Thus the end result in these cases others be by Corps may suggested considered the be same the as that by namely, Corps’ jurisdic- the dissent, that the of assertion agency tion is Given, however, valid. that neither the nor reviewing properly the courts issue, considered the a remand appropriate, my application controlling in view, for legal standard.

Rapanos points As Rapanos, the dissent in out, an ex- 04-1034, No. pert “eminently qualified” whom the District Court found “highly App. credible,” Pet. for Cert. B7, testified providing trapping, the wetlands were “habitat, sediment recycling, peak nutrient flood diminution, reduction flow 1999). augmentation.” (Apr. Although water 4 Tr. 96 expert upstream drainage the had “not studied the these per- the were assert that wetlands thus could not sites” and ibid., he important pollutant-trapping functions, forming did observe: attenua- the flood water

“we have a situation which . . held the site in the wetland . tion in that water is on peak. By the same it not add to flood such that does flowing into it have some additional water token would increasing periods, during the thus, drier the rivers the By token on all of the sites water the same low flow.... they the the flow of water off of the extent that slow trap they will sediment and thus site also accumulate use those and hold nutrients for wetlands sediment systems well,” id., season as at 95-96. later in the assessing hydrology prong In of the three- addition, part supra, 761-762, District see Court test, findings regarding made water tables drain- extensive and. jurisdic- age parcels applying on the at issue. regulations, tional the District found that each of Court wetlands bore surface-water connections to tributaries navigable-in-fact waters. permit

Much the same evidence should the establishment significant navigable-in-fact particu- waters, of a nexus with larly by signifi- supplemented if further evidence about are connected. cance of the tributaries to which the wetlands though Appeals, recognizing however, Court required jurisdiction, under such a nexus was for SWANCC significant presence held that a nexus be satisfied “can hydrologic of a 376 F. at 639. Absent 3d, connection.” significance measure connection down- some quality, stream this was too uncertain. standard analysis supra, earlier, 779-780, Under the described hydrologic cases; mere in all connection should suffice hydrologic may the connection be too insubstantial for linkage required nexus wa- to establish the with traditionally my ters as understood. view this case may should be remanded so that the District recon- Court light appropriate sider the evidence in See, standard. (1982) g., e. Swint, Pullman-Standard v. 456 U. S. (“When appellate an court discerns that a district court has finding failed to make a because of an erroneous view of the law, the usual rule is that there should be a remand for fur- proceedings permit ther the trial court to make the miss- ing findings”).

Carabell In Carabell, 04-1384, No. the record also contains evidence bearing jurisdictional inquiry. on the Corps The noted “[bjesides deciding appeal the administrative the effects quality, [district on wildlife office] habitat and water also project major, noted that the long-term would have a detri- mental effect on wetlands, flood retention, recreation and conservation ecology,” App. Similarly, overall 218a. permit the district office’s evaluation, officers observed: proposed

“The destroy/adversely impact work would an area that retains rainfall and forest nutrients and would replace it pollutants. with a new source area for runoff may Pollutants from this area include lawn fertilizers, pesticides, grease. herbicides, salt, oil, road These pollutants directly would then runoff into the water- way. operation proposed . . . Overall, and use of the activity major, long negative would have a impact term, quality. on water impacts The cumulative of numerous projects major such negative would be as the few remaining developed.” the area are Id., 97a-98a. by “eliminating] evaluation further noted that potential ability of the wetland to act as a catch sediment proposed project

basin,” “would contribute to increased down- along and further the drain accretion and . . runoff . it observed And Id., at 98a. Creek.” in Auvase stream likely cause down- site would from the runoff increased magni- flooding possible in increase an areas to “see stream frequency.” Id., at 99a. tude “potential language in these The conditional assessments— degree suggest undue flooding” an ability,” “possible —could identify reviewing substan- court must speculation, and a see 5 U. S. C. supporting claims, tial evidence 706(2)(E). that factors the record does show Nevertheless, already jurisdictional inquiry been have to the relevant Rapanos, though, the record As in noted and considered. regularity quantity of flow gives little indication of may be im- in the tributaries —a consideration Rapanos, assessing portant as in Also, the nexus. imprecise. legal applied the facts standard was considering Appeals, case after The Court Carabell inquiry Rapanos its in terms of whether decision, framed significant hydrologic required connection is to establish a that much of its not, nexus. The court held that it is holding play pollutant is the role wetlands correct. Given filtering, storage, may control, flood and runoff it well be (in interchange hydrologic absence of connection the sense of waters) significance for the that shows the wetlands’ aquatic system. In the decision under re administrative jurisdiction solely view, its on the however, based adjacency opposite wetlands’ to the ditch the berm on the property’s edge. explained adjacency to a earlier, As mere tributary just insufficient; of this sort is a similar ditch could many any navigable-in-fact as well be located miles from carry only water and insubstantial flow toward it. A more specific inquiry, significant-nexus on standard, based necessary. again required therefore Thus, a remand is permit application appropriate legal See, standard. (2002) g., (per e. Ventura, INS v. Orlando 537 U. S. curiam) (“Generally appeals speaking, a court of should re- agency amand case to an for decision of a matter that stat- hands”). place primarily agency utes ^[*] H= ^[*] In these judgments consolidated I cases would vacate the Appeals of the Court of and remand for consideration specific whether possess significant the wetlands at issue navigable nexus with waters.

Justice Stevens, with whom Justice Souter, Justice Breyer Ginsburg, and Justice join, dissenting. Congress

In 1972, decided to “restore and maintain the physical, biological integrity chemical, and of the Nation’s by passing waters” what we now call the Clean Water Act, § seq. amended, 33 U. S. C. 1251 et 86 Stat. The costs achieving goal of ending the pollution by Herculean §1251(a),persuaded 1985, see President Nixon veto its Congress enactment, but both Houses of voted to override by overwhelming margins. that veto goal, To achieve its Congress prohibited discharge any pollutant” “the —de- “any any fined to pollutant navigable include addition of any point waters permit from source”—without a issued by Army Corps Engineers the (Army Corps Corps) or (EPA). §§ 1311(a), Agency the Environmental Protection 1362(12)(A). Congress “navigable further defined waters” 1362(7). to mean “the waters of the United States.” question presented The narrow in No. 04-1034 is whether adjacent traditionally navigable to tributaries of subject waters juris- are “waters of the United States” to the Army Corps; question diction of the the in No. 04-1384 is separating whether a manmade berm a wetland from the ad- jacent tributary question makes a difference. The broader regulations protected is whether quality that have of our implicitly approved by waters for that were decades, Con- gress, repeatedly and that have been enforced in case after light case, must now be revised of the creative criticisms today. Re- Kennedy by plurality and Justice voiced Army Corps, years practice jecting than 30 more congressional dele- disregards plurality the nature of complex character agency and gation the technical similarly fails to Kennedy at stake. of the issues Justice approach though far sufficiently Corps, his is to the defer statutory principles precedents and to our more faithful to plurality’s. interpretation is the than straightforward. analysis my proper view, adjacent to tribu Army Corps that wetlands has determined quality preserve traditionally waters taries of providing things, by, among other waters of our Nation’s aquatic keeping excessive sediment animals, habitat for reducing pollutants down waters, toxic out of high flooding by absorbing flow. at times stream Corps’ resulting wetlands as en decision to treat these compassed “waters of the United States” within the term example quintessential reasonable inter of the Executive’s a statutory pretation provision. A. See Chevron U. S. of a Council, Inc., 467 U. S. Resources Inc. v. Natural Defense (1984). 842-845 Bay Riverside decision in States v. Our unanimous United (1985), faithful to our Inc., 474 121 was Homes, view U. S. Legislative duty respect product and to the work Today’s judicial Executive Branches of our Government. Act is not. amendment of the Clean Water I peti- 04-1034, At the three sites at issue No. each of permits, large de- areas of wetlands without tioners filled regulatory require- spite being full notice of the on plurality gives to the facts short shrift Because the ments. shall 04-1384—I of this case—as well as to those No. length. discuss them at some Salzburg site are illustra- to the 230-acre

The facts related Michigan Depart- Rapanos asked the tive. John (MDNR) inspect ment of Natural Resources the site “in feasibility building shop- order to discuss with him the a Cert, ping App. center there.” to Pet. for 04-1034, No. p. inspector Rapanos An B15. MDNR informed that the probably land included wetlands that were “waters of the application permit and him United States” sent an for a § Rapanos under of the Act.1 then hired a wetland con- sultant, Dr. Frederick Goff. After Dr. concluded that Goff many “Rapanos the land did in fact contain wetlands, acres of ‘destroy’ destroy threatened to Dr. if he did not Goff report, pay wetland refused Dr. unless and until Goff complied.” applying he In meantime, Ibid. without for permit, Rapanos companies hired construction to do clearing filling spots, $350,000worth of work in low land, draining Rapanos prevented subsurface water. After inspectors visiting ignored site, MDNR from an MDNR obey cease-and-desist letter, and refused to an administra- compliance tive EPA, order issued the matter was Department referred to the In the civil Justice. case now unlawfully Rapanos us, before the District Court found that filled acres of wetlands.

Rapanos engaged and his wife in similar behavior at the applying Hines Road and Pine River sites. Without permits, they companies perform hired construction clearing filling They extensive activities. continued receiving these activities even after EPA administrative compliance directing orders them to cease the work immedi- ately. They ultimately spent $158,000at the 275-acre Hines filling existing site, Road 17 of its 64 acres of wetlands. At they spent site, $463,000 the 200-acre Pine River and filled 15 of its 49 acres of wetlands. destruction,

Prior to their the wetlands at all three sites traditionally navi- had surface connections to tributaries of gable Salzburg connected to a drain waters. The

1 §§ Michigan operates Pursuant to 33 U. S. C. its own 1344(g)-(h), permitting program, subject supervision Army Corps. from the navigable into a creek that flowsinto the Kawkaw- flows lin River. The Hines Road wetlands connected to a drain that flows into the Tittabawassee And the River. Pine River wetlands connected with the Pine which River, flows into Lake Huron. put expert,

At trial, the Government on a wetland “eminently Willard, Dr. Daniel whom the trial court found qualified” “highly Id., credible.” at B7. Dr. Willard provided testified that the wetlands at these three sites eco- logical trapping, functions in terms of “habitat, sediment nu- recycling, peak (Apr. trient and flood diminution.” Tr. 96 1999).2 explained: He “[Generally for all of the . . sites we have . a situation in which the flood water attenuation in that water is held on the site in the wetland . .. such that it does not peak. By add to flood the same token it would have flowing during some additional water into the rivers periods, increasing drier thus, low water flow.

“By the same token on all of the sites to the extent they they slow flow of water of the will site also trap accumulate sediment sediment and thus and hold systems nutrients for use in those wetland later in the season as Id., at 95-96. well.” The District Court found that the wetlands at all three sites were covered the Clean Act Water and that the Ra- panoses by destroying had violated the Act them without permits. unanimously The Sixth Circuit affirmed. 376 (2004). 3dF. petition-

The facts of No. 04-1384 are less dramatic. The ers in that case own a 20-acre tract land, of which 16 acres County are wetlands, located in Macomb a mile from Lake 2Dr. “stud[y] Willard did not the upstream drainage of these sites . . . well enough to make a statement” they performed about whether also pollutant-trapping functions. 4 Tr. 96.

St. Clair. These wetlands border a ditch that flows into drain that flows into a creek that flows into Lake St. Clair. separates A 4-foot-wide manmade berm the wetlands from rarely passes ditch; thus water if ever from wetlands to ditch or vice versa. applied permit

Petitioners for a to fill most of these wet- yards They 57,500 lands with cubic of material. intended development to build a 112-unit condominium on the site. inspecting considering After the site and comments from, among Quality others, the Water County Unit of the Macomb (which urged Prosecutor’s Corps deny Office per- “[t]he mit high quality because loss of this wetland area unacceptable would have an adverse effect on wildlife, water quality, and App. conservation of wetlands resources,” 79a), p. Corps No. permit. 04-1384, denied the Id., at petitioners, 84a-126a. As summarized in a letter sent to reasons for denial included: parcel primarily

“Your pro- a forested wetland that vides valuable aquatic organisms seasonal habitat for year organisms. round habitat for terrestrial Addi- tionally, provides storage the site that, functions destroyed, if could result in an increased risk of erosion degradation quality of water in the Sutherland- Oemig Drain, Auvase Creek, and Lake St. Clair. The impacts minimization of important to these wetlands is ecology conservation region. and the overall of the project development Because area is a forested wet- proposed project destroy land, would the resources they in such a manner that would not soon recover from impacts discharges. impacts The extent of in project individually area when considered both and cu- mulatively unacceptable contrary would be to the public Id., interest.” at 127a-128a. judgment

As in 04-1034, No. the unanimous of the District Judges jurisdiction and Circuit was that the has over of tradition- a tributary it is to adjacent this wetland because 2004). (CA6 The So- 704 391 F. 3d waters. ally navigable both judgments. defends licitor General

II Bayview squarely in Riverside unanimous Our opinion of the the validity we evaluated There, cases. controls these in- These regulations at issue today. same very regulations all tradition- to cover of the United States” “waters terpret wet- waters; and of these waters; tributaries ally navigable their waters or to traditionally navigable lands adjacent (7) (2005); (5), §§ and 328.3(a)(1), 33 tributaries. CFR (1985). (7) 323.2(a)(1), (5), particular §§ Although Bayview in Riverside abutted navigable wetland at issue as whether creek, we framed question presented to landown- Act “authorizes Corps require Clean Water fill before discharging ers to from Corps obtain permits of water bodies to material into wetlands adjacent added).3 and their tributaries.” S., 474 at 123 U. (emphasis addi contrast, any opinion” Corps’ on the By express we not “d[id] adjacent that are not jurisdiction over “wetlands tional assertion (3) (1985).” 323.2(a)(2) water, §§ 474 U. CFR open bodies of see 33 reservation). id., 131-132, 8; the same (making n. also n. see Kennedy’s ante, concurring (opinion at 780 Contrary reading, to Justice Corps’ jurisdiction reserving the issue of the judgment), we were not of the tributaries, reserving the issue only but adjacent over wetlands regu A at the cited truly glance waters. Corps’ jurisdiction over isolated 323.2(a)(2) interstate “[a]ll refers to makes this clear. Section lation 323.2(a)(3) § other “[a]ll covers interstate wetlands” and including waters rivers, intermittent lakes, (including intrastate streams waters such as wetlands, wet mudflats, sandflats, prairie potholes, streams), sloughs, use, destruc meadows, lakes, degradation or ponds, natural playa or any including foreign commerce tion of which could affect interstate Cty. Cook v. Northern Agency See also Solid Waste such waters.” (2001) (considering the Army Corps Engineers, 531 U. S. 163-164 328.3(a)(3) substantively (1999), § iden which is validity application of an (1985) 323.2(a)(5) (1978)). 323.2(a)(3) adjacent § Wetlands and to tical to in the 1985 were covered traditionally navigable waters to tributaries of pursuant Chevron, held to our decision that, We question it “our review is limited to the whether is rea- legislative light language, policies, sonable, history jurisdiction of the Act for the to exercise regularly over wetlands flooded but hydrographic rivers, streams, and other features ” conventionally more identifiable as ‘waters.’ S.,U. at 131.

Applying standard, this we held that the decision interpret encompassing to “waters of the United States” as permissible. recognized practical such wetlands was We the drawing difficulties in clean lines and water, between land Corps’ judgment treating id., at 132,and deferred to the that adjacent “congres- wetlands as “waters” would advance the protection quality aquatic sional concern for of water ecosystems,” id., at 133.

Contrary plurality’s reading today, to the ante, revisionist Bayview implied 740-742, 746-747, Riverside nowhere approval “adjacent” contingent that our of wetlands was upon understanding “adjacent” having an that means a “con- tinuous surface connection” the wetland and its between neighboring acknowledged creek, ante, Instead, at 742. we Corps “adjacent” including that the defined wetlands “ proximity ‘that form to the border of or are in reasonable reasonably Corps other waters’” and found that the con- adjacent part cluded that the of the wetlands are of waters (quoting Reg. S., United States. U. at 134 Fed. (1977)). explicitly acknowledged Corps’ we that the Indeed, jurisdictional though determination was reasonable even every great importance adjacent

“not to wetland is of adjoining the of of If it is environment bodies water.... by namely, a combination of regulation provisions regulation, other §§323.2(a)(1) (4) waters), tribu- (covering traditionally navigable (covering (a)(1) (7) waters), adjacent taries of wetlands (covering subsection (a)(4) waters). subsection majority that in the to conclude reasonable the significant effects on have cases, of ecosystem, quality its can stand. definition and the may that are the include some wetlands That definition adja- ecosystem significantly with the intertwined appears waterways moment, it little for where cent is of Corps’ inis fact definition that a wetland covered aquatic lacking importance environment... always development Corps may of the wetland for allow issuing permit.” simply by 474 U. other uses 135, n. 9. closing, emphasized scope as- we that specifically jurisdiction wetlands had

serted over been Congress brought Congress’ had attention that rejected juris- have an amendment that would narrowed proponents amendment diction, and even would altogether the definition not have removed wetlands from Id., at “waters of the United 135-139. States.” Bayview, Disregarding importance of Riverside opinion plurality heavily subsequent relies on the Court’s Agency Cty. Army Corps Solid Northern Cook v. Waste (SWANCC). (2001) Engineers, 531 In stark con- U. 159 S. Bayview, nothing however, trast to Riverside had SWANCC say adjacent to about alone about to wetlands, let wetlands traditionally navigable Instead, or their waters tributaries. by question specifically dealt with SWANCC a reserved Riv- namely, jurisdic- Bayview, supra, see erside n. part tion over isolated ‘waters that are not a waters —“ tributary system navigable to or waters interstate waters degradation of which States, the United destruction ” S., could affect interstate commerce.’ 531 U. at 168-169 323.2(a)(5) (1978); added); § (quoting emphasis 33 see CFR 328.2(a)(3) § (1999), (citing U.S., also 531 at 33 163 CFR 323.2(a)(5) § equivalent regulatory which is the later (1978)). At issue was “an abandoned sand and SWANCC gravel migratory pit. provide[d] . which habitat birds” .

795 and contained a few pools isolated, intra “nonnavigable, state waters.” 531 U. 166. The had as Corps serted over the jurisdiction under its 1986 gravel pit Migra Bird Rule, which tory treated isolated waters as within its if jurisdiction birds migratory these depended waters. upon The Court this rejected jurisdictional basis since these iso Bay wetlands at issue in Riverside lated Unlike the pools, view, had no nexus” to “significant traditionally navigable waters. S.,U. at 167. In the the Court distin process, Bayview’s Riverside guished reliance on decision Congress’ to leave the alone when it Corps’ regulations amended the “ Act in 1977, since both Chambers, '[i]n debate on the pro to narrow thé posals definition of waters centered navigable ” on the issue of largely wetlands rather than preservation’ on the over Corps’ jurisdiction isolated waters. truly atS.,U. 136).4 S.,U. (quoting 4As The Chief Justice observes, the Corps initially and the EPA con sidered revising their regulations Ante, in response to SWANCC. at 757- 758 (concurring opinion). The Chief Justice neglects mention, how ever, that almost all of the 43 States to submit any comments opposed significant narrowing Corps’ jurisdiction did roughly 99% of the —as 133,000 other comment Office, submitters. See U. S. General Accounting Report Chairman, to Subcommittee on Energy Policy, Natural Re Affairs, sources and Regulating Reform, Committee on Government Representatives, House of Waters and Wetlands: of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdic (Feb. tion, GAO-04-297, pp. 2004), 14-15 http://www.gao.gov/new.items/ (hereinafter (all d04297.pdf Report) GAO Internet materials as visited 14,2006, June file); and available in Clerk of Court’s case Brief for Associa tion of State and Interstate Water Pollution Control Administrators Amicus Curiae. event, In any the agencies’ decision to abandon their rulemaking hardly responsible for the cases at proposed hand. The rulemaking waters, focused on isolated which by are covered 33 CFR 328.3(a)(3) (1999) SWANCC, and which were called question by into rather than on waters, to tributaries of which (7) (until are §§ covered 328.3(a)(1), (5), combination of and which now) of River obviously seemed within agencies’ jurisdiction the in light Bayview. side (2003) (“The See 68 Fed. Reg. agencies 1994 seek comment 328.3(a)(3)(i) (iii)... on the use of the factors 33 CFR in determining — 796 Bay view, the cases Riverside and like

Unlike SWANCC adjacent to “navi today are wetlands that concern before us [or] S., at 123. tributaries,” 474 U. gable water their bodies traditionally tributaries Specifically, wetlands abut these Bayview, recognized navigable in Riverside As we waters. important play Corps that such wetlands has concluded adjacent maintaining quality waters, see of their roles consequently in the waters downstream. and id., 134-135, spawning, “nesting, things, Among can offer other species”; aquatic rearing resting land “serve sites storage waters”; and storm and flood areas for as valuable purification 33 provide “significant functions.” CFR water 320.4(b)(2)(2005); § These values are 474 at 134-135. S.,U. plural hardly “independent” ecological considerations as they integral ity ante, instead, are it, have would 741— biological integrity physical, of the Na “chemical, 1251(a). that wetlands Given waters,” tion’s 33 U. S. C. given important quality the am roles and these water serve phrase States,” biguity “waters of the United inherent in the jurisdiction reasonably interpreted to cover its has 5 at 131-135. wetlands. See 474 U. nonisolated isolated, intrastate, non-navigable jurisdiction Water over [Clean Act] waters”). scope of the Appeals to consider the Unsurprisingly, most Courts that this jurisdiction after SWANCC unhesitatingly have concluded Corps’ adjacent and wetlands jurisdiction covers intermittent tributaries —in waters and their trib traditionally navigable normal sense word —to (CA4 2003) Deaton, States v. (uphold g., utaries. E. United 332 F. 3d 698 adjacent might to a ditch that jurisdiction over wetlands ing ditch but did drain into consistently flowing not contain another waterway); Head navigable drained into a that drained into a creek that 2001) (CA9 Dist., waters, (treating Irrigation v. Talent F. 3d 526 Inc. intermittently held water United States” canals that as “waters of the States v. Rueth waters); United to other tributaries of connected (CA7 2003) Co., “it is clear Development (observing F. 3d SWANCC did not affect the law adjacency” upholding regarding... had a that this wetland finding over a wetland without Corps’ jurisdiction Fre- tributary); Baccarat connection to its continuous surface

797 by Congress’ confirmed deliber- This conclusion is further acquiescence Corps’ regulations Id., in in 1977. at ate about the 136. Both Chambers conducted extensive debates rejected Corps’ jurisdiction regulatory wetlands, over ef- jurisdiction, appropriated forts to limit this funds for a “ “ ” Inventory’ help ‘National Wetlands to ‘in the States development operation programs under this Act.’” 1288(i)(2)). (quoting Id., at 135-139 33 U. S. C. We found significant Bayview, these facts in 474 Riverside see U. acknowledged 135-139, at as we SWANCC, see 531 S.,U. (noting “[bjeyond Congress’ at regu- 170-171 to desire adjacent ‘navigable respondents- late wetlands to waters,’ point persuasive congressional acquies- no us to evidence” of added)). (emphasis cence jurisdiction exercise is reasonable even

though every adjacent traditionally naviga not wetland to a (or tributary perform any) ble water or its perhaps will all quality generally of the water functions with associated wet Bayview lands. jurisdiction Riverside made clear that does depend wetland-by-wetland not inquiry. on a S.,U. enough adjacent 135, n. Instead, 9. it is that wetlands generally significant tributaries a have nexus to water quality. particular signifi shed’s water If a wetland is “not cantly ecosystem adjacent intertwined with the water ways,” may Corps development “simply by then the allow its .6 issuing permit.” Accordingly, purposes Ibid of Corps’ jurisdiction significance it no that the wetlands 04-1034 No. serve flood control and sediment sink func- mont (CA9 2005) Army v. U.S. Corps Engineers, 1150, 425 F. 3d (upholding Corps’ jurisdiction over separated wetlands berms from traditionally navigable “SWANCC observing channels and simply did not address the issue of jurisdiction wetlands”); but see In re over Needham, (CA5 2003) F. 3d 340 “waters of the United States” (reading 1990). narrowly as used the Oil Pollution Act of 6Indeed, “[t]he approves virtually permitís],” all section 404 though requiring often applicants mitigate to avoid impacts and other waters. Report GAO 8. supra, other do much

tions, pollutants, but not may trap in No. 04-1384 keeps and n. or that wetland sediment, Lake Clair but may excess water from St. trap supra, at 790-792. see involved, the costs alarmed by plurality

Seemingly from Riverside that recognition juris- shies away Bayview’s the a I do not with is not affair. diction case-by-case agree of that the costs preserving plurality’s assumption §of are are It is true that the cost 404 unduly high. permits these costs for those who must obtain them7 —but high 1% of the amount to a small fraction of billion only spent $760 on construction and each private develop- year public ment 80. More & Zilberman activity. Sunding significant how- costs, than the concern about plurality’s exaggerated the is the that its of of ever, fact omission discussion any a have sheds benefits at issue produced regulations (and on the indeed the revelatory light quality impartiality) its of wetlands cost-benefit analysis.8 importance 7According Sunding plurality, and Zilberman article cited (with ante, a $29,000 for is permits 80% of mean cost about $12,000). Regula median cost of about The Economicsof Environmental Per by Licensing: Changes tion An Assessment Recent the Wetland (hereinafter (2002) Process, 59, 63, 74 mitting 42 Natural Resources J. Zilberman). Only permits & for 20% of the for Sunding less than —those the mean cost projects significant impacts with most on wetlands—is (and $272,000 $155,000). around the median cost is Ibid. course, wa- every dredged Of not fill or material into the placement §404 fill requires permit. Only when such ters of United States a eonvey- point “discernible, from confined and comes discrete sources— (14). 1362(12), § §§ More- permit ance[s]” needed. 33 U. S. C. —is over, permits point engaged are for from sources required discharges activities; in, of trans- among things, farming other normal maintenance roads, structures; ditches, irrigation farm portation and construction 1344(f). roads, mining forest roads. temporary environmentalism, the defending antagonism Rather than its own Ante, counters is plurality by claiming my “policy-laden.” dissent are my thinking influenced policy at 746. The considerations that have inter my considering rather whether the Congress’ than own. ac- reasonable, admittedly taking I am into pretation jurisdiction of its quality g., See, water is hard to overstate. e. U. S. Congress, Technology Assessment, Office of Wetlands: (Mar. Regulation, pp. Their OTA-O-206, Use and 43-61 1984), http://govinfo.library.unt.edu/ota/OTA_4/DATA/1984/ (hereinafter OTA) 8433.pdf (describing wetlands’ role in floodpeak protection, ground shoreline re- reduction, charge, trapping suspended filtering pol- sediment, of toxic wildlife). protection lutants, ante, of fish and See also concurring judgment). Unsurpris- at 777 (Kennedy, J., ingly, Corps’ approach overwhelming has the endorse- including ment of curiae, numerous amici and the States county property in which the in No. 04-1384 is located. analysis, appropriate

In final however, concerns about the Corps’ 30-year implementation ness of the of the Clean Congress Water Act should be addressed to Judiciary. partic rather than to the the benefits of Whether outweigh ular conservation measures their costs is a classic question public policy by ap that should not be answered pointed judges. large The fact re that investments are quired large developments merely to finance means that adversely by Corps’ permit those who are most affected the ting persons ability decisions are who have the to communi effectively representatives. cate with their until Unless and (or they convincing Congress Corps) succeed in the today important 1970’s, clean water is less than it was in the satisfying regulations we continue the to owe deference to protection congressional “evident breadth of concern for ecosystems” quality that all of the Justices and qquatic Bay recognized view, on the in 1985 in Riverside Court S.,U. at 133. chemical, physical, congressional purpose protecting count the the see also Chevron 1251(a); biological integrity of our waters. See 33 U. S. C. Council, Inc., 467 U. S.

U . S. A. Inc. Natural Resources Defense v. (1984) was consist (considering agency regulation whether the Air Act’s] policy [Clean ent with “the concerns that motivated enactment”). III plurality’s departure setting from aside the dramatic Even Bayview, reasoning holding in its creative our Riverside plurality imposes opinion utterly unpersuasive. The two jurisdiction Corps’ novel conditions on the exercise of only muddy jurisdictional that can waters. As Justice sup- observes, “these limitations .. . are without Kennedy port language purposes of the Act or in our cases (opinion concurring judg- interpreting ment). Ante, it.” at 768 impropriety crafting these new conditions is sug- highlighted by party the fact that no or amicus has gested either of them.9 ignoring importance preserving jurisdiction

First, periodically dry, plurality over water beds that are im poses requirement only tributaries with the “rela tively permanent” presence of water fall within the jurisdiction. plurality’s Ante, at view, 732. Under the regulate polluters dump dredge then, the can who into year may regu a stream that flows round but not be able to polluters dump neighboring late who into a stream that flows only days year dredge if the in this —even second stream would have the same effect on downstream dredge year-round Ante, waters as the in the one. at 732- n. 5.10 9Only 3 of the 21 amici petitioners’ briefs filed on behalf come even close to for one of asking plurality’s two conditions. These briefs half-argue Corps’ juris that intermittent streams should fall outside the though not for the reasons See Brief for given plurality. diction — 7; Stone, 20, National Sand and Gravel Assn. et al. n. Brief for Foundation 22-23; for Progress Environmental and Economic et al. Brief for Western Coalition of Arid States 10. 10 “seasonal plurality “necessarily does that rivers” are not suggest Corps’ jurisdiction from the then that suggests exclude[d]” further —and Ante, 732, explore “streams” are “rivers.” at n. I will not the seman 5. tic posed by point. point, difficulty issues the latter On the former I have how understanding plurality’s a “seasonal” river could meet test of having present “relatively permanent[ly].” By failing explain water

801 arbitrary compelled by statute, To find this distinction plurality dictionary proposition a it cites for does dictionary not contain. The treats “streams” as “waters” nothing say but has about whether must streams contain year qualify round to Ante, 732-733, as “streams.” (citing Dictionary and n. 6 Webster’s New International 2493 (2d 1954) (hereinafter Second), defining ed. as Webster’s “ stream as a ‘current or course fluid, of water or other flow ”). ing plurality on this, the earth’ Prom somehow de ephemeral duces that streams can never be intermittent or (i. flowing only part year). e., for of the Ante, at 732- usage 734, and nn. 5-6. But common sense and common perennial demonstrate intermittent streams, like 11 g., Dept, streams, are still See, streams. e. U. Inte S. Geological Survey, Topographic Symbols U. Map rior, S. 3 (2005), (iden http://erg.usgs.gov/isb/pubs/booklets/symbols/ tifying symbols “[p]erennial “[intermittent stream” and “[p]erennial “[intermittent stream,” well as for river” and river”). passage This was true well before the of the Act in g., Dictionary 1972. E. Webster’s Third New International (1961)(hereinafter Third) (linking 1180 Webster’s “intermit “stream”). tent” with we Indeed, ourselves have used the term “intermittent stream” as far back as 1932. Harrison (1933). Dickey Clay Mfg. ville v. W.S. Co.,289 U. S. say, Needless to Justice Brandéis’ use term in of the a unani opinion merely mous should not be dismissed as a “useful oxymor[on],” (plurality opinion). ante, 6 n.

itself, plurality litigants guidance leaves without as to where the line it draws “relatively permanent” between and “intermittent” lies. 11Indeed, in the 1977 debate over the scope whether restrict Corps’ regulatory power, Senator recognized Corps’ ju Bentsen that the States, risdiction all waters of the including “cover[s] United small streams, marshes, ponds, isolated intermittently flowing gullies.” (Committee Legislative History of the Clean Water Act of Print com piled for the Senate Committee on Environment and Public Works (1978). Library Congress), 95-14, p. proposed Ser. No. His amend Id., jurisdiction ment to restrict this failed. at 947. 802 to bolster its arbitrary

The attempts jurisdic- plurality and line two statutory provisions tional citing tangential by close canons construction. None comes two inapplicable “waters” to whether to showing Congress directly spoke of water. the relatively permanent presence requires defini- The first relied on by plurality provision —the 1362(14) no con- tion of source” in 33 U. S. C. “point —has on tributaries should ceivable whether bearing permanent ones, treated intermittent since be from differently “pipe[s], can all ditch[es], channels], tunnel[s], eonduit[s], [and] well[s]” The well as hold water intermittently.12 permanently § 1251(b), is which announces a congres- second provision and sional to “recognize, protect primary policy preserve, to of States” to pollution, responsibilities rights prevent and to consult with EPA. Under plan development, made in 1977 when considered statutory additions Congress alter of its broad declined to the Corps’ interpretation 12 plurality’s reasoning contrary mystifying. plurality The The to a that a emphasizes that a ditch around a castle is also called “moat” and ante, 736, channel a See n. 7. manmade is called “canal.” (and have scratching), On their face even much head these points after to do word rather nothing with whether use the “stream” than “ditch” we Indeed, permanently present plu where is concerned. under the water rality’s a or a rather reasoning, we would call a “canal” “stream” “river” a than “canal.”

Moreover, regard “ditch” whether we do use words like without Kirk, Jennison relatively permanently. v. U. S. 453 present water is 98 (1879), for example, Justice Field used term “ditch” —not “stream” —in also, describing year manmade structure that carried water round. See (1906) Knoxville, g., e. Co. v. 22, Knoxville Water (opinion 200 S. 27 U. J.) by Harlan, continuously carry Court (describing “pipes” that would water); ante, 739, reference (plurality opinion) (using “channel” with waters); PUD No. 1 relatively to both permanent intermittent of Jef (de (1994) Cty. Washington Dept. Ecology, v. 511 U. S. ferson round); New Orleans scribing carry year a “tunnel” that would Rivers, (1885) Water-Works Co. (opinion v. S. for the Court 115 U. hotel). J.) Harlan, water for a (describing supply “conduits” would plurality’s by redefining terms attempt achieve its desired outcome justice. lexicography does no credit to alone —let § may regulatory jurisdiction, the run their own 404 States 1251(b) §§ § programs. 1344(g)-(h). specifi- modified, As cally recognizes part pri- this role for the of their States as mary responsibility preventing pollution. for water Even focusing only on the Act as it stood 1977, between 1972 and Paper Ouellette, but see International 481, Co. v. 479 U. S. (1987) 1251(b) § (interpreting light 489-490 in of the 1977ad- ditions), jurisdiction by Corps broad exercise of the still left ample rights responsibilities. the States with and D. See S. Protection, ante, Warren Co.v. Maine Bd. Environmental power impose tougher at 386-387. had States water § pollution required by standards than Act, 1370, and to prevent Corps issuing permits, and the EPA from 1341(a)(1) nearly responsibility to mention exclusive —not containing pollution nonpoint from sources. plurality

The two canons of construction relied on similarly Corps. fail to overcome the deference owed to the plurality intruding First, the claims that concerns about on power regulate compel state land use the conclusion that phrase “waters of the United does in- States” not cover recognized, termittent As however, streams. we have Con- “ gress discharge pollutants it found ‘essential that be con- ” Bayview, source,’ trolled at the S., Riverside 474 U. at 133 (1972)), (quoting Rep. p. S. 92-414, No. and the can broadly accomplish define “waters” this aim. Second, plurality suggests that the canon of constitutional avoidance applies Corps’ approach might because the exceed the limits authority. Setting of our Commerce Clause aside whether proper such a SWANCC, 173; concern was in 531 U. dissenting), plainly id., but see J., at 192-196 it is (Stevens, are not warranted here. The wetlands these cases “isolated” but instead are to tributaries of tradition- ally navigable play important waters and roles in the water- keeping shed, such as water out of the tributaries or absorb- ing water from the no tributaries. “There is constitutional why Congress power, reason cannot, under the commerce key control on to flood as a watersheds treat the Phillips rel. ex Oklahoma tributaries.” their streams (1941). Guy Co.,313 U. S. F. Atkinson v. disregards the fundamen- plurality importantly, the Most then-justice As Act. significance of the Clean Water tal writing explained for the Court Rehnquist when “viewed merely rather was law” but another Act was “not ‘complete restructuring’ rewrit- by Congress a ‘total legislation.” existing pollution Milwaukee ing’ enacting “Congress’ intent 304, 317. Illinois, 451 U. S. v. pro- all-encompassing clearly [Act] to establish an was “[t]he casual pollution regulation,” most gram of water history views legislative that... perusal demonstrates practi- legislation comprehensive were nature of on the cally see also 531 U. Id., 12; and n. universal.” dissenting). con- The has J., at 177-181 (Stevens, they pollutants regulate at the time cluded that it must ordinary high-water marks— or streams with enter ditches ephemeral perennial, order intermittent, or whether —in (2000). Reg. pollution. properly 65 Fed. control water phrase ambiguity “waters of in the Because there is broadly interpreting cover it and because United States” purpose Act, and streams advances such ditches Inter- Corps’ approach deference. should command our just perennial carry pollutants as can mittent streams prove important regulation may as their can, streams purposes. identifiable inclusion of all The for flood control ultimately large bodies of water drain into tributaries that surely protection is wise. of federal within the mantle arbitrary statutory is as plurality’s invention The second changing Trivializing significance condi- as its first. sepa- imposes plurality environments, tions in wetlands requirement continuous surface “the has a rate wetland waterway abutting that it is “diffi- such with its connection” and the ‘wetland’ the ‘water’ ends cult to determine where physically re- begins.” “intermittent, An Ante, at 742. mote connection” between the wetland and other hydrologic Ibid. Under waters is not view, this enough.

that border waters or their tributar- traditionally navigable ies and the essential function of perform overflow soaking up waters hurricane season —thus during reducing flooding downstream —can be filled in with by developers impunity, as the wetlands lack a surface long connection with the adjacent the rest of the waterway year. The plurality begins reasonably enough by recognizing “

that the Corps may all wetlands appropriately regulate ‘ad- Ibid. This to’” jacent other waters. recognition wise, since the text statutory this clearly accepts standard. Title 33 U. S. C. in added 1344(g)(1), 1977, includes wet- “adjacent lands” in its description “waters” and thus “expressly stated that the term ‘waters’ included wetlands.” Bayview, Riverside S.,U. at 138. While this may “conclusively determine the construction to be on the placed use of the term ‘waters’ elsewhere in the Act..., light the fact that the various of the Act provisions should be read pari materia, it does at least suggest strongly term ‘waters’ as used the Act does not exclude necessarily Id., ‘wetlands.’” n. 11. “ ” on, plurality goes however, to define to’ ‘adjacent as “with a meaning continuous surface connection to” other Ante, water. at 742. It is unclear how the plurality reached this conclusion, it though plainly consult neglected Even its dictionary. preferred Webster’s Second defines near, close, or the term as “[ljying contiguous; neighboring; on” and bordering that Adja- are acknowledges “[ojbjects necessarily cent when not lie close to each they but other, in actual contact.” Webster’s Second 32 added); (emphasis see also Webster’s Third 26. event, the any proper ques- tion is not how the would define plurality but “adjacent,” whether the definition is Corps’ reasonable.

The defines Corps “adjacent” “bordering, contiguous, “[wjetlands neighboring,” that specifies from separated bar- dikes or man-made the United States waters of other ‘adja- are the like dimes and berms, beach natural river riers, §328.3(c)(2005). This definition wetlands.’” 33 CFR cent and in terms its face plainly both on reasonable, physically are that purposes of the Act. While may perform func- less valuable separated from other waters permit- in its to evaluate a matter for the tions, this is Bayview, ting in Riverside made this clear decisions. We plurality’s impose the did not 474 U. n. 9—which despite requirement of evidence that new an absence continuous surface connec- wetland at issue had the sort of today. supra, required by plurality see 793; tion See concurring judgment) ante, J., also at 772-774 (Kennedy, (observing plurality’s requirement that the is inconsistent Bayview). 04-1384 with Riverside And as facts No. separated by demonstrate, wetland a berm from may prove important tributaries still to downstream water quality. Congress Corps’ was on notice of the Moreover, “adjacent” definition of when it amended the Act in 1977 §1344(g)(1). Reg. and added 33 U. S. C. (1977). See Fed. Finally, implicitly recognizing approach endangers that its quality Congress sought protect, of waters which plurality suggests regulate pollutants that the EPA can be- they actually fore enter “waters of United States.” express Ante, at 742-746. I no view on the merits of the plurality’s reasoning, heavily respect which relies on a judgments conspicuously lacking lower court that is earlier opinion, in its ante, at 726-729. why plurality

I do fail to understand, however, would similarly apply logic dredged this and fill material. (other authority pollutants dredged The EPA’s over than materials) statutory language fill stems from the identical gives jurisdiction. plural- rise to the ity practical asserting claims that there difference, is a dredged normally and fill material “does not wash down- Ante, stream.” at 744. While more of this material will probably stay put pollutants, very than true of is soluble existence of language, words like “alluvium” and “silt” in our suggests see Webster’s Third 59, 2119, that at least some fill way g., makes its also, downstream. e. See United States v. (CA4 2003) Deaton, (“Any pollutant F. 3d or fill degrades quality tributary material that in a . . . has potential degrade quality move downstream and themselves”). navigable of the waters Moreover, such fill biological integrity can harm the of downstream waters even largely stays put upstream. it purpose pro- if The Act’s tecting 1251(a)(2); see fish, 33 U. S. C. Co., S. D. Warren seriously impaired ante, 385-386, could be sediment in upstream spawn, waters where fish since excessive sediment bottom-dwelling can “smother impair invertebrates and fish spawning,” g., also, 48. OTA See e. Erman & Hawthorne, Importance Quantitative an Intermittent Stream in Spawning Trout, Rainbow 105 Transactions of the Society (1976); American Fisheries 675-681 Brief for Ameri- can Rivers (observing et al. as Amici Curiae 14 that anadro- streams). spawn mous salmon often in small, intermittent IV generally agree While I with I Parts and II-A Justice Kennedy’s opinion, I do not share his view that we should replace regulatory place standards that been in have for over years judicially awith crafted rule distilled term from the “significant nexus” as used in To the extent SWANCC. passing statutory our require- use of this term has become a categorically it ment, satisfied as to wetlands' Bayview waters or their tributaries. Riverside together only SWANCC make this clear. SWANCC’s significant use of the term comes in the “It sentence: was the ‘navigable nexus between the wetlands and that in- waters’ reading [Clean Act] our formed Water Riverside Bayview.” Bayview 531 U. at 167. Because Riverside navigable adjacent to encompass “wetlands to written

was reserved 123, at S., 474 U. tributaries,” their waters and 8; 131-132,n. waters, id., at only see question of isolated Corps’ jurisdic- supra, its determination 3, see also n. issue in these cases. applies at to the wetlands tion apparent applicability of Riverside setting Even aside adjacent tribu- to Bayview, that wetlands think it clear I “significant generally navigable have a of waters taries traditionally navigable waters downstream. nexus” with “nonnavigable, isolated, intrastate waters” Unlike obviously can these wetlands SWANCC, 531 U. at by re- downstream water flow have a cumulative effect on leasing by keeping back at times low flow waters waters logical gives high times connection alone at flow. This traditionally navigable wetlands the “limited” to connection requires, id., 172; waters that is all the statute see at Kennedy’s disproves S., at claim that U. 133—and Justice my meaning “‘navigable,’” approach gives no to the word concurring Similarly, (opinion judgment). ante, at preserve by quality these wetlands can downstream water trapping filtering pollutants, protecting toxic sediment, fish-spawning grounds, may and so forth. While there exist categories traditionally adjacent of wetlands to tributaries navigable cumulatively, plausibly have that, waters taken no any aspect relationship discernible of downstream water quality, skeptical. given I am And even Kenne- Justice dy’s “significant-nexus” compelling test, in the absence many categories evidence I see that such do exist no reason Corps’ longstanding regulations that are conclude overbroad. Kennedy’s “significant-nexus” probably test will

Justice not do much to diminish the number of wetlands covered Kennedy long recog- the Act in the run. himself Justice nizes that the records in both cases contain evidence permit significant nexus,” “should establishment of likely it ante, ante, seems 788; see also all) (if findings support to most evidence would similar adjacent waters. But to tributaries creating approach will have the effect of Kennedy’s Justice parties. Developers additional work for all concerned wish- ing ephemeral to fill wetlands or intermittent traditionally navigable tributaries waters will have no cer- way knowing they get permits tain to whether need 404 (or ease-by-case the not. And will have to make jurisdictional category-by-category) which determinations, inevitably spent proc- will increase the time and resources essing permit applications. problems precisely These are Bayview’s the ones approach that Riverside deferential (noting avoided. See U. n. 9 that it “is of jurisdiction encompasses little if moment” some significantly wetlands “not intertwined” with other waters States). of the United Unlike Justice I see no Kennedy, change Bayview’s reason approach to every Riverside —and reason to continue to defer to the sensible, Executive’s bright-line rule. y explained Congress

As passed I SWANCC, the Clean response widespread recognition Act in Water to on —based burning Cuyahoga events like the 1969 of the River Cleve- land—that appallingly polluted. our waters had become (dissenting opinion). S., U. at 174-175 largely The Act has restoring quality succeeded in of our Nation’s waters. Cuyahoga Where the River was once coated with industrial “[tjoday, waste, that location is lined with restaurants and pleasure slips.” boat EPA, A Benefits Assessment of the (Jan. Programs p. Water Pollution Control Since 1-2 2000),http://www.epa.gov/ost/economics/assessment.pdf. By curtailing Corps’ jurisdiction years, of more than plurality needlessly jeopardizes quality of our waters. doing plurality disregards so, the deference it owes congressional acquiescence Execu- in the Executive, the Bayview, recognized position in Riverside that we tive’s obligation interpret than to make laws rather to its own approach far fewer has them. While Justice Kennedy’s give proper deference to to it also fails faults, nonetheless by Congress implement agencies the Clean entrusted Water Act. respect- judgments cases, in both

I would affirm the fully of five Members this Court from the decision dissent by noting an un- close, however, remand. I to vacate and judgments in these cases. It usual feature Court’s coming practice in us a lower been a case from has our judgment commanding court to to enter a federal court specific proceedings pursuant any a man- further conduct prior practice made it neces- has, occasion, date. That on sary join judgment that not conform to for Justices to did while both the cases, however, their own In these views.13 plurality agree that there must be a and Justice Kennedy respective opinions proceedings, de- further their remand for applied that all be remand. Given fine different tests to on joined opinion uphold the four Justices who have this would jurisdiction Corps’ all other in both of these cases—and in plurality’s in cases which either Kennedy’s Justice judgments should test is satisfied—on remand each of be met.14 if either of those tests is reinstated 13 (Rut States, (1945) g., e. See, 91, Screws v. United U. S. 131-134 325 FCC, System, Inc. v. result); Broadcasting Turner J., ledge, concurring in (1994) (Stevens, J., concurring part concurring S. in and U. (2004) (Souter, Rumsfeld, judgment); Hamdi v. in U. S. 553-554 J., concurring judgment). in in in concurring part, dissenting part, and Kennedy’s 14I Justice approach controlling that will be assume as within the most cases because it treats more the Nation’s waters unlikely test is Corps’ jurisdiction, plurality’s but in event Kennedy’s not, Justice uphold met but courts should also may States jurisdiction. sum, In in these and future cases the United prove jurisdiction under either test. elect Justice Breyer, dissenting. my authority Army Corps Engineers view, of the congres

under the Clean Water Act extends to the limits of power regulate sional interstate commerce. See Solid Agency Cty. Army Waste Northern Cook v. En (2001) (SWANCC) gineers, 531 159, 181-182 U. S. (Stevens, dissenting). J., difficulty finding I therefore have no that the wetlands at issue in Corps’ juris these cases are within the join diction, I dissenting opinion. Justice Stevens’ My part upon view of the statute rests in the nature of the problem. The statute seeks to “restore and maintain the physical, biological integrity chemical, of the Nation’s 1251(a). waters.” 33 U. S. C. Those waters are so various intricately and so Congress might interconnected that well only way have goal decided the to achieve this is to write broadly statute that defines “waters” and to leave the enforc- ing agency restricting with scope the task of of that through definition, either regulation wholesale or retail through development permissions. why That is I believe Congress, using the term “waters of the United §1362(7), fully States,” intended to exercise its relevant powers. Commerce Clause

I contrary mention this my because the Court, view, has requirement written a “nexus” into the SWANCC, statute. supra, concurring 167;ante, judg 779 (Kennedy, J., ment) (“[T]he Corps’ jurisdiction depends over wetlands upon significant the existence of a nexus between the wet question lands in waters in the traditional sense”). But it has left powers the administrative Army Corps Engineers agency may untouched. That regulations defining write something that it has term — yet give regulations done. And the courts must those appropriate deference. Chevron U.S. A. Inc. Natural Re v. (1984).

sources Council, Inc., 467 U. S. 837 Defense thing Congress Army If one clear, is it is that intended Engineers complex judg- to make the technical (subject present cases lie ments that at the heart review). updated reg- judicial In the absence deferential have make ad hoc determinations courts will ulations, transforming questions into matters scientific run the risk of system Congress intended. Hence That not the of law. together, today’s opinions, call I taken believe regulations, Army Corps Engineers new to write speedily so.

Case Details

Case Name: Rapanos v. United States

Court Name: Supreme Court of the United States

Date Published: Jun 19, 2006

Citation: 547 U.S. 715

Docket Number: 04-1034

Court Abbreviation: SCOTUS