Sackett v. EPASackett v. EPA
Petitioners Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling the lot with dirt to prepare for building a home. The Environmental Protection Agency informed the Sacketts that their property contained wetlands and that their backfilling violated the Clean Water Act, which prohibits discharging pollutants into “the waters of the United States.”
Held: The CWA‘s use of “waters” in
(a) The uncertain meaning of “the waters of the United States” has been a persistent problem, sparking decades of agency action and litigation. Resolving the CWA‘s applicability to wetlands requires a review of the history surrounding the interpretation of that phrase. Pp. 663–671.
(1) During the period relevant to this case, the two federal agencies charged with enforcement of the CWA—the EPA and the Army Corps
Against that backdrop, the Court in Rapanos vacated a lower court decision that had held that the CWA covered wetlands near ditches and drains that emptied into navigable waters several miles away. As to the rationale for vacating, however, no position in Rapanos commanded a majority of the Court. Four Justices concluded that the CWA‘s coverage was limited to certain relatively permanent bodies of water connected to traditional interstate navigable waters and to wetlands that are “as a practical matter indistinguishable” from those waters. Id., at 755 (emphasis deleted). Justice Kennedy, concurring only in the judgment, wrote that CWA jurisdiction over adjacent wetlands requires a “significant nexus” between the wetland and its adjacent navigable waters, which exists when “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of those waters. Id., at 779–780. Following Rapanos, field agents brought nearly all waters and wetlands under the risk of CWA jurisdiction by engaging in fact-intensive
Under the agencies’ current rule, traditional navigable waters, interstate waters, and the territorial seas, as well as their tributaries and adjacent wetlands, are waters of the United States. See 88 Fed. Reg. 3143. So too are any “[i]ntrastate lakes and ponds, streams, or wetlands” that either have a continuous surface connection to categorically included waters or have a significant nexus to interstate or traditional navigable waters. Id., at 3006, 3143. Finding a significant nexus continues to require consideration of a list of open-ended factors. Ibid. Finally, the current rule returns to the agencies’ longstanding definition of “adjacent.” Ibid. Pp. 663–669.
(2) Landowners who even negligently discharge pollutants into navigable waters without a permit potentially face severe criminal and civil penalties under the Act. As things currently stand, the agencies maintain that the significant-nexus test is sufficient to establish jurisdiction over “adjacent” wetlands. By the EPA‘s own admission, nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt. Pp. 669–671.
(b) Next, the Court considers the extent of the CWA‘s geographical reach. Pp. 671–679.
(1) To make sense of Congress‘s choice to define “navigable waters” as “the waters of the United States,” the Court concludes that the CWA‘s use of “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’ ” Rapanos, 547 U. S., at 739 (plurality opinion). This reading follows from the CWA‘s deliberate use of the plural “waters,” which refers to those bodies of water listed above, and also helps to align the meaning of “the waters of the United States” with the defined term “navigable waters.” More broadly, this reading accords with how Congress has employed the term “waters” elsewhere in the CWA—see, e. g.,
The EPA‘s insistence that “water” is “naturally read to encompass wetlands” because the “presence of water is ‘universally regarded as the most basic feature of wetlands’ ” proves too much. Brief for Respondents 19. It is also tough to square with SWANCC‘s exclusion of isolated ponds or Riverside Bayview‘s extensive focus on the adjacency of wetlands to covered waters. Finally, it is difficult to see how the States’
(2) Statutory context shows that some wetlands nevertheless qualify as “waters of the United States.” Specifically,
To determine when a wetland is part of adjacent “waters of the United States,” the Court agrees with the Rapanos plurality that the use of “waters” in
In sum, the CWA extends to only wetlands that are “as a practical matter indistinguishable from waters of the United States.” This requires the party asserting jurisdiction to establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i. e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Id., at 755, 742. Pp. 674–679.
(1) The EPA‘s interpretation is inconsistent with the CWA‘s text and structure and clashes with “background principles of construction” that apply to the interpretation of the relevant provisions. Bond v. United States, 572 U. S. 844, 857. First, “exceedingly clear language” is required if Congress wishes to alter the federal/state balance or the Government‘s power over private property. United States Forest Service v. Cowpasture River Preservation Assn., 590 U. S. –––, –––. The Court has thus required a clear statement from Congress when determining the scope of “the waters of the United States.” Second, the EPA‘s interpretation gives rise to serious vagueness concerns in light of the CWA‘s criminal penalties, thus implicating the due process requirement that penal statutes be defined ” ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited.’ ” McDonnell v. United States, 579 U. S. 550, 576. Where penal statutes could sweep broadly enough to render criminal a host of what might otherwise be considered ordinary activities, the Court has been wary about going beyond what “Congress certainly intended the statute to cover.” Skilling v. United States, 561 U. S. 358, 404. Under these two principles, the judicial task when interpreting “the waters of the United States” is to ascertain whether clear congressional authorization exists for the EPA‘s claimed power. Pp. 679–681.
(2) The EPA claims that Congress ratified the EPA‘s regulatory definition of “adjacent” when it amended the CWA to include the reference to “adjacent” wetlands in
8 F. 4th 1075, reversed and remanded.
Justice Alito delivered the opinion of the Court.
This case concerns a nagging question about the outer reaches of the Clean Water Act (CWA), the principal federal
There is, however, an unfortunate footnote to this success story: the outer boundaries of the Act‘s geographical reach have been uncertain from the start. The Act applies to “the waters of the United States,” but what does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach “mudflats, sandflats, wetlands, sloughs, prairie pot
For more than a half century, the agencies responsible for enforcing the Act have wrestled with the problem and adopted varying interpretations. On three prior occasions, this Court has tried to clarify the meaning of “the waters of the United States.” But the problem persists. When we last addressed the question 17 years ago, we were unable to agree on an opinion of the Court.3 Today, we return to the problem and attempt to identify with greater clarity what the Act means by “the waters of the United States.”
I
A
For most of this Nation‘s history, the regulation of water pollution was left almost entirely to the States and their subdivisions. The common law permitted aggrieved parties to bring nuisance suits against polluters. But as industrial production and population growth increased the quantity and toxicity of pollution, States gradually shifted to enforcement by regulatory agencies.4 Conversely, federal regulation was largely limited to ensuring that “traditional navigable waters“—that is, interstate waters that were either navigable in fact and used in commerce or readily susceptible of being used in this way—remained free of impediments. See, e. g., Rivers and Harbors Act of 1899, 30 Stat. 1151; see also United States v. Appalachian Elec. Power Co., 311 U. S. 377, 406–407 (1940); The Daniel Ball, 10 Wall. 557, 563 (1871).
Congress eventually replaced this scheme in 1972 with the CWA. See 86 Stat. 816. The Act prohibits “the discharge of any pollutant” into “navigable waters.”
The CWA is a potent weapon. It imposes what have been described as “crushing” consequences “even for inadvertent violations.” Army Corps of Engineers v. Hawkes Co., 578 U. S. 590, 602 (2016) (Kennedy, J., concurring). Property owners who negligently discharge “pollutants” into covered waters may face severe criminal penalties including imprisonment.
The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) jointly enforce the CWA. The EPA is tasked with policing violations after the fact, either by issuing orders demanding compliance or by bringing civil actions.
Due to the CWA‘s capacious definition of “pollutant,” its low mens rea, and its severe penalties, regulated parties have focused particular attention on the Act‘s geographic scope. While its predecessor encompassed “interstate or navigable waters,”
B
Michael and Chantell Sackett have spent well over a decade navigating the CWA, and their voyage has been bumpy
At the time, the EPA interpreted “the waters of the United States” to include “[a]ll . . . waters” that “could affect interstate or foreign commerce,” as well as “[w]etlands adjacent” to those waters.
According to the EPA, the “wetlands” on the Sacketts’ lot are “adjacent to” (in the sense that they are in the same neighborhood as) what it described as an “unnamed tributary” on the other side of a 30-foot road. App. 33. That
The Sacketts filed suit under the Administrative Procedure Act,
We granted certiorari to decide the proper test for determining whether wetlands are “waters of the United States.” 595 U. S. ––– (2022).
II
A
In defining the meaning of “the waters of the United States,” we revisit what has been “a contentious and difficult task.” National Assn. of Mfrs. v. Department of Defense, 583 U. S. 109, 113–114 (2018). The phrase has sparked decades of agency action and litigation. In order to resolve the CWA‘s applicability to wetlands, we begin by reviewing this history.
Eventually the EPA and Corps settled on materially identical definitions. See 45 Fed. Reg. 33424 (1980); 47 Fed. Reg. 31810–31811 (1982). These broad definitions encompassed “[a]ll . . . waters” that “could affect interstate or foreign commerce.”
This Court first construed the meaning of “the waters of the United States” in United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). There, we were confronted with the Corps’ assertion of authority under the CWA over wetlands that “actually abut[ted] on a navigable waterway.” Id., at 135. Although we expressed concern that wetlands seemed to fall outside “traditional notions of ‘waters,’ ” we nonetheless deferred to the Corps, reasoning that “the transition from water to solid ground is not necessarily or even typically an abrupt one.” Id., at 132–133.
The agencies responded to Riverside Bayview by expanding their interpretations even further. Most notably, they issued the “migratory bird rule,” which extended jurisdiction to any waters or wetlands that “are or would be used as [a] habitat” by migratory birds or endangered species. See 53 Fed. Reg. 20765 (1988); 51 Fed. Reg. 41217 (1986). As the Corps would later admit, “nearly all waters were jurisdictional under the migratory bird rule.”8
In Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (2001) (SWANCC), this Court rejected the migratory bird rule, which the Corps had used to assert jurisdiction over several isolated ponds located wholly within the State of Illinois. Disagreeing with the Corps’ argument that ecological interests supported its jurisdiction, we instead held that the CWA does not “ex
Days after our decision, the agencies issued guidance that sought to minimize SWANCC‘s impact. They took the view that this Court‘s holding was “strictly limited to waters that are ‘nonnavigable, isolated, and intrastate’ ” and that “field staff should continue to exercise CWA jurisdiction to the full extent of their authority” for “any waters that fall outside of that category.”9 The agencies never defined exactly what they regarded as the “full extent of their authority.” They instead encouraged local field agents to make decisions on a case-by-case basis.
What emerged was a system of “vague” rules that depended on “locally developed practices.” GAO Report 26. Deferring to the agencies’ localized decisions, lower courts blessed an array of expansive interpretations of the CWA‘s reach. See, e. g., United States v. Deaton, 332 F. 3d 698, 702 (CA4 2003) (holding that a property owner violated the CWA by piling soil near a ditch 32 miles from navigable waters). Within a few years, the agencies had “interpreted their jurisdiction over ‘the waters of the United States’ to cover 270-to-300 million acres” of wetlands and “virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow.” Rapanos v. United States, 547 U. S. 715, 722 (2006) (plurality opinion).
It was against this backdrop that we granted review in Rapanos v. United States. The lower court in the principal case before us had held that the CWA covered wetlands near ditches and drains that eventually emptied into navigable waters at least 11 miles away, a theory that had supported the petitioner‘s conviction in a related prosecution. Id., at 720, 729. Although we vacated that decision, no position commanded a majority of the Court. Four Justices con
In the decade following Rapanos, the EPA and the Corps issued guidance documents that “recognized larger grey areas and called for more fact-intensive individualized determinations in those grey areas.”10 As discussed, they instructed agency officials to assert jurisdiction over wetlands “adjacent” to non-navigable tributaries based on fact-specific determinations regarding the presence of a significant nexus. 2008 Guidance 8. The guidance further advised officials to make this determination by considering a lengthy list of hydrological and ecological factors. Ibid. Echoing what they had said about the migratory bird rule, the agencies later admitted that “almost all waters and wetlands across the country theoretically could be subject to a case-specific jurisdictional determination” under this guidance. 80 Fed. Reg. 37056 (2015); see, e. g., Hawkes Co., 578 U. S., at 596 (explain
More recently, the agencies have engaged in a flurry of rulemaking defining “the waters of the United States.” In a 2015 rule, they offered a muscular approach that would subject “the vast majority of the nation‘s water features” to a case-by-case jurisdictional analysis.11 Although the rule listed a few examples of “waters” that were excluded from regulation like “[p]uddles” and “swimming pools,” it categorically covered other waters and wetlands, including any within 1,500 feet of interstate or traditional navigable waters. 80 Fed. Reg. 37116–37117. And it subjected a wider range of other waters, including any within 4,000 feet of indirect tributaries of interstate or traditional navigable waters, to a case-specific determination for significant nexus. Ibid.
The agencies repealed this sweeping rule in 2019. 84 Fed. Reg. 56626. Shortly afterwards, they replaced it with a narrower definition that limited jurisdiction to traditional navigable waters and their tributaries, lakes, and “adjacent” wetlands. 85 Fed. Reg. 22340 (2020). They also narrowed the definition of “[a]djacent,” limiting it to wetlands that “[a]but” covered waters, are flooded by those waters, or are separated from those waters by features like berms or barriers. Ibid. This rule too did not last. After granting the EPA‘s voluntary motion to remand, a District Court vacated the rule. See Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949, 957 (D Ariz. 2021).
The agencies recently promulgated yet another rule attempting to define waters of the United States. 88 Fed. Reg. 3004 (2023) (to be codified in
B
With the benefit of a half century of practice under the CWA, it is worth taking stock of where things stand. The agencies maintain that the significant-nexus test has been and remains sufficient to establish jurisdiction over “adjacent” wetlands. And by the EPA‘s own admission, “almost all waters and wetlands” are potentially susceptible to regulation under that test. 80 Fed. Reg. 37056. This puts many property owners in a precarious position because it is “often difficult to determine whether a particular piece of property contains waters of the United States.” Hawkes Co., 578 U. S., at 594; see
What are landowners to do if they want to build on their property? The EPA recommends asking the Corps for a jurisdictional determination, which is a written decision on whether a particular site contains covered waters. Tr. of Oral Arg. 86; see Corps, Regulatory Guidance Letter No. 16–01, at 1 (2016) (RGL 16–01);
If the landowner is among the vast majority who receive adverse jurisdictional determinations, what then? It would be foolish to go ahead and build since the jurisdictional determination might form evidence of culpability in a prosecution or civil action. The jurisdictional determination could be challenged in court, but only after the delay and expense required to exhaust the administrative appeals process. See
III
With this history in mind, we now consider the extent of the CWA‘s geographical reach.
A
We start, as we always do, with the text of the CWA. Bartenwerfer v. Buckley, 598 U. S. 69, 74 (2023). As noted, the Act applies to “navigable waters,” which had a well-established meaning at the time of the CWA‘s enactment. But the CWA complicates matters by proceeding to defne “navigable waters” as “the waters of the United States,”
This reading follows from the CWA‘s deliberate use of the plural term “waters.” See 547 U. S., at 732–733. That term typically refers to bodies of water like those listed above. See, e. g., Webster‘s Second 2882; Black‘s Law Dictionary 1426 (5th ed. 1979) (“especially in the plural, [water] may designate a body of water, such as a river, a lake, or an ocean, or an aggregate of such bodies of water, as in the phrases `foreign waters,’ `waters of the United States,’ and the like” (emphasis added)); Random House Dictionary of the
This reading also helps to align the meaning of “the waters of the United States” with the term it is defning: “navigable waters.” See Bond v. United States, 572 U. S. 844, 861 (2014) (“In settling on a fair reading of a statute, it is not unusual to consider the ordinary meaning of a defned term, particularly when there is dissonance between that ordinary meaning and the reach of the defnition“). Although we have acknowledged that the CWA extends to more than traditional navigable waters, we have refused to read “navigable” out of the statute, holding that it at least shows that Congress was focused on “its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” SWANCC, 531 U. S., at 172; see also Appalachian Elec., 311 U. S., at 406–407; The Daniel Ball, 10 Wall., at 563. At a minimum, then, the use of “navigable” signals that the defnition principally refers to bodies of navigable water like rivers, lakes, and oceans. See Rapanos, 547 U. S., at 734 (plurality opinion).
More broadly, this reading accords with how Congress has employed the term “waters” elsewhere in the CWA and in other laws. The CWA repeatedly uses “waters” in contexts that confrm the term refers to bodies of open water. See
Statutory history points in the same direction. The CWA‘s predecessor statute covered “interstate or navigable waters” and defned “interstate waters” as “all rivers, lakes, and other waters that fow across or form a part of State boundaries.”
This Court has understood the CWA‘s use of “waters” in the same way. Even as Riverside Bayview grappled with whether adjacent wetlands could fall within the CWA‘s coverage, it acknowledged that wetlands are not included in “traditional notions of `waters.’ ” 474 U. S., at 133. It explained that the term conventionally refers to “hydrographic features” like “rivers” and “streams.” Id., at 131. SWANCC went even further, repeatedly describing the “waters” covered by the Act as “open water” and suggesting that “the waters of the United States” principally refers to traditional navigable waters. 531 U. S., at 168–169, 172. That our CWA decisions operated under this assumption is unsurprising. Ever since Gibbons v. Ogden, 9 Wheat. 1 (1824), this Court has used “waters of the United States” to refer to similar bodies of water, almost always in relation to ships. Id., at 218 (discussing a vessel‘s “conduct in the waters of the United States“).14
B
Although the ordinary meaning of “waters” in
In 1977, Congress amended the CWA and added
When this convoluted formulation is parsed, it tells us that at least some wetlands must qualify as “waters of the United States.” The provision begins with a broad category, “the waters of the United States,” which we may call category A. The provision provides that States may permit discharges into these waters, but it then qualifes that States cannot permit discharges into a subcategory of A: traditional navigable waters (category B). Finally, it states that a third category (category C), consisting of wetlands “adjacent” to traditional navigable waters, is “includ[ed]” within B. Thus, States may permit discharges into A minus B, which includes C. If C (adjacent wetlands) were not part of A (“the waters of the United States“) and therefore subject to regulation under the CWA, there would be no point in excluding
But what wetlands does the CWA regulate? Section 1344(g)(1) cannot answer that question alone because it is not the operative provision that defnes the Act‘s reach. See Riverside Bayview, 474 U. S., at 138, n. 11. Instead, we must harmonize the reference to adjacent wetlands in
This understanding is consistent with
If
This is the thrust of observations in decisions going all the way back to Riverside Bayview. In that case, we deferred to the Corps’ decision to regulate wetlands actually abutting a navigable waterway, but we recognized “the inherent diffculties of defning precise bounds to regulable waters.” 474 U. S., at 134; see also id., at 132 (noting that “the transition from water to solid ground is not necessarily or even typically an abrupt one” due to semi-aquatic features like shallows and swamps). In such a situation, we concluded, the Corps could reasonably determine that wetlands “adjoining bodies of water” were part of those waters. Id., at 135, and n. 9; see also SWANCC, 531 U. S., at 167 (recognizing that Riverside Bayview “held that the Corps had . . . juris
In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that “waters” may fairly be read to include only those wetlands that are “as a practical matter indistinguishable from waters of the United States,” such that it is “diffcult to determine where the `water’ ends and the `wetland’ begins.” 547 U. S., at 742, 755 (emphasis deleted). That occurs when wetlands have “a continuous surface connection to bodies that are `waters of the United States’ in their own right, so that there is no clear demarcation between `waters’ and wetlands.” Id., at 742; cf.
In sum, we hold that the CWA extends to only those wetlands that are “as a practical matter indistinguishable from waters of the United States.” Rapanos, 547 U. S., at 755 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish “frst, that the adjacent [body of water constitutes] . . . `water[s] of the United States,’ (i. e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it diffcult to deter
IV
The EPA resists this reading of
A
For reasons already explained, this interpretation is inconsistent with the text and structure of the CWA. Beyond that, it clashes with “background principles of construction” that apply to the interpretation of the relevant statutory provisions. Bond, 572 U. S., at 857. Under those presumptions, the EPA must provide clear evidence that it is authorized to regulate in the manner it proposes.
1
First, this Court “require[s] Congress to enact exceedingly clear language if it wishes to signifcantly alter the balance between federal and state power and the power of the Government over private property.” United States Forest Service v. Cowpasture River Preservation Assn., 590 U. S. –––, ––– – ––– (2020); see also Bond, 572 U. S., at 858. Regulation of land and water use lies at the core of traditional state authority. See, e. g., SWANCC, 531 U. S., at 174 (citing Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 44 (1994)); Tarrant Regional Water Dist. v. Herrmann, 569 U. S. 614, 631 (2013). An overly broad interpretation of the CWA‘s reach would impinge on this authority. The area covered by wetlands alone is vast—greater than the combined surface area of California and Texas. And the scope of the EPA‘s conception of “the waters of the United States” is truly staggering when this vast territory is supplemented by all the additional area, some of which is generally dry, over which the Agency asserts jurisdiction. Particularly given the CWA‘s express policy to “preserve” the States’ “primary” authority over land and water use,
The EPA, however, offers only a passing attempt to square its interpretation with the text of
2
Second, the EPA‘s interpretation gives rise to serious vagueness concerns in light of the CWA‘s criminal penalties. Due process requires Congress to defne penal statutes ” `with suffcient defniteness that ordinary people can understand what conduct is prohibited’ ” and ” `in a manner that does not encourage arbitrary and discriminatory enforce
The EPA contends that the only thing preventing it from interpreting “waters of the United States” to “conceivably cover literally every body of water in the country” is the signifcant-nexus test. Tr. of Oral Arg. 70–71; accord, Brief for Respondents 32. But the boundary between a “signifcant” and an insignifcant nexus is far from clear. And to add to the uncertainty, the test introduces another vague concept—“similarly situated” waters—and then assesses the aggregate effect of that group based on a variety of open-ended factors that evolve as scientific understandings change. This freewheeling inquiry provides little notice to landowners of their obligations under the CWA. Facing severe criminal sanctions for even negligent violations, property owners are “left `to feel their way on a case-by-case basis.’ ” Sackett, 566 U. S., at 124 (quoting Rapanos, 547 U. S., at 758 (Roberts, C. J., concurring)). Where a penal statute could sweep so broadly as to render criminal a host of what might otherwise be considered ordinary activities, we have been wary about going beyond what “Congress certainly intended the statute to cover.” Skilling, 561 U. S., at 404.
Under these two background principles, the judicial task when interpreting “the waters of the United States” is to ascertain whether clear congressional authorization exists for the EPA‘s claimed power. The EPA‘s interpretation falls far short of that standard.
B
While mustering only a weak textual argument, the EPA justifes its position on two other grounds. It primarily
This argument fails for at least three reasons. First, as we have explained, the text of
Second, this ratifcation theory cannot be reconciled with our cases. We have repeatedly recognized that
Third, the EPA cannot provide the sort of “overwhelming evidence of acquiescence” necessary to support its argument in the face of Congress‘s failure to amend
The EPA also advances various policy arguments about the ecological consequences of a narrower defnition of adjacent. But the CWA does not defne the EPA‘s jurisdiction based on ecological importance, and we cannot redraw the Act‘s allocation of authority. See Rapanos, 547 U. S., at 756 (plurality opinion). “The Clean Water Act anticipates a partnership between the States and the Federal Government.” Arkansas v. Oklahoma, 503 U. S. 91, 101 (1992). States can and will continue to exercise their primary authority to combat water pollution by regulating land and water use. See, e. g., Brief for Farm Bureau of Arkansas et al. as Amici Curiae 17–27.
V
Nothing in the separate opinions fled by Justice Kavanaugh and Justice Kagan undermines our analysis. Justice Kavanaugh claims that we have “rewrit[ten]” the CWA, post, at 725 (opinion concurring in judgment), and Justice Kagan levels similar charges, post, at 712–713 (opinion concurring in judgment). These arguments are more than unfounded. We have analyzed the statutory language in
VI
In sum, we hold that the CWA extends to only those “wetlands with a continuous surface connection to bodies that are `waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters. Rapanos, 547 U. S., at 742, 755 (plurality opinion) (emphasis deleted); see supra, at 678–679. This holding compels reversal here. The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters.
* * *
We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins, concurring.
I join the Court‘s opinion in full. The Clean Water Act (CWA) confnes the Federal Government‘s jurisdiction to ” `navigable waters,’ ” defned as “the waters of the United States.”
However, like the Rapanos plurality before it, the Court focuses only on the term “waters“; it does not determine the extent to which the CWA‘s other jurisdictional terms—“navigable” and “of the United States“—limit the reach of the statute. Ante, at 671–674; Rapanos, 547 U. S., at 731 (plurality opinion). I write separately to pick up where the Court leaves off.
I
The CWA‘s jurisdictional terms have a long pedigree and are bound up with Congress’ traditional authority over the channels of interstate commerce. Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 168, and n. 3, 172, 173–174 (2001) (SWANCC). That traditional authority was limited in two ways. First, the water had to be capable of being used as a highway for interstate or foreign commerce. Second, Congress could regulate such waters only for purposes of their navigability—by, for example, regulating obstructions hindering navigable capacity. By the time of the CWA‘s enactment, the New Deal era arguably had relaxed the second limitation; Congress could regulate navigable waters for a wider range of purposes. But, critically, the statutory terms “navigable waters,” “navigable waters of the United States,” and “waters of the United States” were still understood as invoking only Congress’ authority over waters that are, were, or could be used as highways of interstate or foreign commerce. The CWA was enacted, and must be understood, against that key backdrop.
A
As the Court correctly states, “land and water use lies at the core of traditional state authority.” Ante, at 679; see
The Federal Government‘s authority over certain navigable waters is granted and limited by the Commerce Clause, which grants Congress power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
This federal authority, however, does not displace States’ traditional sovereignty over their waters. “The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie.” Gilman v. Philadelphia, 3 Wall. 713, 724–725 (1866) (emphasis added). And, traditionally, this limited authority was confned to regulation of the channels of interstate commerce themselves. Corfield v. Coryell, 6 F. Cas. 546, 550–551 (No. 3,230) (CC ED Pa. 1823) (Washington, J., for the Court). It encompassed only “the power to keep them open and free from any obstruction to their navigation” and “to remove such obstructions when they exist.” Gilman, 3 Wall., at 725. Thus, any activity that “interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by
This understanding of the limits of Congress’ channels-of-commerce authority prevailed through the end of the 19th century. The Court‘s cases consistently recognized that Congress has authority over navigable waters for only the limited “purpose of regulating and improving navigation.” Gibson v. United States, 166 U. S. 269, 271–272 (1897); see also Port of Seattle v. Oregon & Washington R. Co., 255 U. S. 56, 63 (1921) (“The right of the United States in the navigable waters within the several States is limited to the control thereof for purposes of navigation“). And, this Court was careful to reaffrm that “technical title to the beds of the navigable rivers of the United States is either in the States in which the rivers are situated, or in the owners of the land bordering upon such rivers” as determined by “local law.” United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 60 (1913).
The River and Harbor Acts of 1890, 1894, and 1899 illustrate the limits of the channels-of-commerce authority. The 1890 Act authorizes the Secretary of War to “prohibi[t]” “the creation of any obstruction, not affrmatively authorized by law, to the navigable capacity of any waters, in respect of which the United States has jurisdiction.” § 10, 26 Stat. 454. The 1894 Act made it unlawful to deposit matter into “any harbor or river of the United States” that the Federal Government has appropriated money to improve and prohibited injuring improvements built by the United States in “any of its navigable waters.” § 6, 28 Stat. 363.
Congress consolidated and expanded these authorities in the 1899 Act. Section 10 of the Act prohibits “[t]he creation
Three things stand out about these provisions. First, they use the terms “navigable water,” “water of the United States,” and “navigable water of the United States” interchangeably.
Second, Congress asserted its authority only to the extent that obstructions or refuse matter could impede navigation or navigable capacity. Thus, in United States v. Rio Grande Dam & Irrigation Co., 174 U. S. 690 (1899), this Court recog-
Third, § 13 of the Act requires some form of surface water connection between a tributary and traditionally navigable waters. See
The history of federal regulation of navigable waters demonstrates that Congress’ authority over navigation, as traditionally understood, was narrow but deep. It only applied to a discrete set of navigable waters and could only be used to keep those waters open for interstate commerce. See Port of Seattle, 255 U. S., at 63; Rio Grande Dam & Irrigation Co., 174 U. S., at 709. Yet, where Congress had authority, it displaced the States’ traditional sovereignty over their navigable waters and allowed Congress to regulate activities even on land that could directly cause obstructions to navigable capacity. Gilman, 3 Wall., at 724–725; Coombs, 12 Pet., at 78.
In light of the depth of this new federal power, it was carefully limited—mere “effects” on interstate commerce were not sufficient to trigger Congress’ navigation authority. As one District Court presciently observed in interpreting the term “navigable waters of the United States” in the Steamboat Act of 1838:
“To make a particular branch of commerce or trade within a state, a part of the commerce among the several
states, it would not be sufficient that it was remotely connected with that commerce among the several states; for almost everything and every occupation and employment in life are remotely connected with that commerce or navigation. And if Congress has the right to regulate every employment or pursuit thus remotely connected with that commerce, of which they have the control, then it has the right to regulate nearly the entire business and employment of the citizens of the several states. . . . Yet, if Congress has the power to regulate all these employments, and a thousand others equally connected with that commerce, then it can regulate nearly all the concerns of life, and nearly all the employments of the citizens of the several states; and the state governments might as well be abolished. It is not sufficient, then, that navigation, or trade, or business of any kind, within a state, be remotely connected, or, perhaps, connected at all with ‘commerce with foreign nations, or among the several states, or with the Indian tribes,’ it should be a part of that commerce, to authorize congress to regulate it.” The James Morrison, 26 F. Cas. 579, 581 (No. 15,465) (DC Mo. 1846).
The Court‘s observation that “federal regulation was largely limited to ensuring that ‘traditional navigable waters’ . . . remained free of impediments,” ante, at 659, thus does no more than reflect the original understanding of the federal authority over navigable waters.
B
As noted above, the scope of Congress’ authority over waters was defined by the traditional concept of navigability, imported with significant modifications from the English common law.3 Thus, Congress could regulate only “naviga
1
The term “navigable waters” has been in use since the founding to refer to the highways of commerce that were key to the Nation‘s development. Great cities like Philadelphia and St. Louis emerged at first as commercial ports along these navigable waters. The Framers recognized that “Providence has in a particular manner blessed” our country with “[a] succession of navigable waters” that “bind [the Nation] together; while the most noble rivers in the world, running at convenient distances, present [Americans] with highways for the easy communication of friendly aids and the mutual transportation and exchange of their various commodities.” The Federalist No. 2, p. 38 (C. Rossiter ed. 1961) (J. Jay). These “vast rivers, stretching far inland” have been of “transcendent importance” to our Nation‘s economic expansion by forming “great highways” for commerce. L. Houck, Law of Navigable Rivers xiii (1868).
This Court authoritatively set out the scope of the term “navigable waters of the United States” in the seminal case of The Daniel Ball, 10 Wall. 557 (1871). That case arose under the Steamboat Act of 1838, which prohibited the transportation of goods “upon the bays, lakes, rivers, or other nav
Wetlands were generally excluded from this definition. In Leovy v. United States, 177 U. S. 621 (1900), for example, the Court employed the Daniel Ball test to hold that the term “navigable waters of the United States,” as used in the 1890 River and Harbor Act, did not “prevent the exercise by the State of Louisiana of its power to reclaim swamp and overflowed lands by regulating and controlling the current
“When it is remembered that the source of the power of the general government to act at all in this matter arises out of its power to regulate commerce with foreign countries and among the States, it is obvious that what the Constitution and the acts of Congress have in view is the promotion and protection of commerce in its international and interstate aspect, and a practical construction must be put on these enactments as intended for such large and important purposes.” Ibid.
The Court thus held that the mere use of a wetland by fishermen was not sufficient to make the wetland a navigable water of the United States; it “was not shown that passengers were ever carried through it, or that freight destined to any other State than Louisiana, or, indeed, destined for any market in Louisiana, was ever, much less habitually, carried through it.” Id., at 627.4
2
In the New Deal era, as is well known, this Court adopted a greatly expanded conception of Congress’ commerce authority by permitting Congress to regulate any private intrastate activity that substantially affects interstate commerce, either by itself or when aggregated with many similar activities. See Wickard v. Filburn, 317 U. S. 111, 127–129 (1942); see also United States v. Darby, 312 U. S. 100, 119 (1941). Yet, this expansion did not fundamentally change the Court‘s understanding that the term “navigable waters” referred to waters used for interstate commerce. Thus, in Appalachian Elec., the Court continued to apply the concept of navigability to determine the scope of Congress’ Commerce Clause authority to require licenses under the Federal Water Power Act for the construction of hydroelectric dams in “navigable waters.” 311 U. S., at 406–410. Only after
The next year, in Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508 (1941), the Court reaffirmed that the term “navigable waters,” this time as used in the Flood Control Act of 1936, was to be interpreted in light of the expanded Daniel Ball test. 313 U. S., at 522–525. Significantly, Oklahoma was decided mere months after Darby, one of the most significant cases expanding the scope of the commerce authority. 312 U. S., at 119. However, Oklahoma did not so much as mention Darby in construing the jurisdiction Congress conveyed in the term “navigable waters.” Instead, it cited Darby only in passing and to support the argument that, once a river is deemed navigable under the channels-of-commerce authority, Congress has authority to protect “the nation‘s arteries of commerce” by regulating intrastate activities on nonnavigable parts and tributaries of the navigable river lest such activities “impai[r] navigation itself.” Oklahoma, 313 U. S., at 525. This was nothing more than an application of the principle that Congress can regulate activities that obstruct navigable capacity. Thus, even as the Court expanded the Commerce Clause in other contexts, it continued to understand that the term “navigable waters” refers solely to the aquatic channels of interstate commerce over which Congress traditionally exercised authority.
This understanding of the term “navigable waters“—i. e., as shorthand for waters subject to Congress’ authority under the Daniel Ball test—persisted up to the enactment of the CWA. See, e. g., Stoeco Homes, Inc., 498 F. 2d, at 608–609; United States v. Joseph G. Moretti, Inc., 478 F. 2d 418, 428–429 (CA5 1973); see also D. Guinn, An Analysis of Navigable Waters of the United States, 18 Baylor L. Rev. 559, 579 (1966) (“[T]he test of The Daniel Ball and Appalachian Power Co. are religiously cited as being the basis for the holding on the issue of navigability“). As a court observed near the time of the CWA‘s enactment, “[a]lthough the definition of ‘navigability’ laid down in The Daniel Ball has subsequently been modified and clarified, its definition of ‘navigable water of the United States,’ insofar as it requires a navigable interstate linkage by water, appears to remain unchanged.” Hardy Salt Co. v. Southern Pacific Transp. Co., 501 F. 2d 1156, 1167 (CA10 1974) (citations omitted). This Court‘s cases, too, continued to apply traditional navigability concepts in cases under the River and Harbor Acts right up to the CWA‘s enactment. See United States v. Standard Oil Co., 384 U. S. 224, 226 (1966) (holding that spilling oil in a navigable water was prohibited by the Refuse Act (§ 13 of the 1899 Act) because “its presence in our rivers and harbors is both a menace to navigation and a pollutant“); United States v. Republic Steel Corp., 362 U. S. 482, 487–491 (1960) (“diminution of the navigable capacity of a waterway” required for violation of the Refuse Act). Thus, on the eve of the CWA‘s enactment, the term “navigable waters” meant those waters that are, were, or could be used as highways of interstate or foreign commerce.
II
This history demonstrates that Congress was not writing on a blank slate in the CWA, which defines federal jurisdic
The Army Corps of Engineers originally understood the CWA in precisely this way. In its 1974 regulation establish
Almost immediately, however, a few courts and the recently created Environmental Protection Agency (EPA) rejected this interpretation. Instead, they interpreted the CWA to assert the full extent of Congress’ New Deal era authority to regulate anything that substantially affects interstate commerce by itself or in the aggregate. See United States v. Ashland Oil & Transp. Co., 504 F. 2d 1317, 1323–1329 (CA6 1974); P. F. Z. Properties, Inc. v. Train, 393 F. Supp. 1370, 1381 (DC 1975); National Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975); United States v. Holland, 373 F. Supp. 665, 669, 672–674 (MD Fla. 1974);
These courts and the EPA had only one textual hook for their interpretation: In defining the term “navigable waters” as “the waters of the United States,” the CWA seemed to drop the term “navigable” from the operative part of the definition. Seizing on this phrasing, the EPA‘s general counsel asserted in 1973 that “the deletion of the word ‘navigable’ eliminates the requirement of navigability. The only remaining requirement, then, is that pollution of waters covered by the bill must be capable of affecting interstate commerce.” 1 EPA Gen. Counsel Op. 295 (1973). Similarly, the District Court that vacated the Corps’ original CWA definition held, without any analysis or citation, that the term “the waters of the United States” in the CWA is “not limited to the traditional tests of navigability.” National Resources Defense Council, 392 F. Supp., at 686.
That interpretation cannot be right. For one, the terms “navigable waters” and “the waters of the United States” had long been used synonymously by courts and Congress. The CWA simply used the terms in the same manner as the River and Harbor Acts. Moreover, no source prior to the CWA had ever asserted that the term “the waters of the United States,” when not modified by “navigable,” reached any water that may affect interstate commerce. Instead, The Daniel Ball made clear that “[t]he phrase ‘waters of the United States, . . . in contradistinction from the navigable waters of the States,’ . . . distinguishes interstate from intrastate waters.” Albrecht & Nickelsburg 11049 (quoting The Daniel Ball, 10 Wall., at 563); accord, 1 A. Knauth, Benedict on Admiralty § 44, p. 96 (6th ed. 1940) (“The inland lakes of
Thus, the CWA‘s use of the phrase “the waters of the United States” reinforces, rather than lessens, the need for a water to be at least part of “a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” The Daniel Ball, 10 Wall., at 563. At most, the omission of the word “navigable” signifies that the CWA adopts the expanded Daniel Ball test—that includes waters that are, have been, or can be reasonably made navigable in fact—in its statutory provisions. The Federal Government‘s interpretation, by contrast, renders the use of the term “navigable” a nullity and involves an unprecedented and extravagant reading of the well-understood term of art “the waters of the United States.” See Albrecht & Nickelsburg 11049 (“EPA‘s conclusion is ahistorical as well as illogical“).7 “[T]he waters of the United States” does not mean any water in the United States.
SWANCC thus interpreted the text of the CWA as implementing Congress’ “traditional jurisdiction over waters that
In sum, the plain text of the CWA and our opinion in SWANCC demonstrate that the CWA must be interpreted in light of Congress’ traditional authority over navigable waters. See Albrecht & Nickelsburg 11055 (noting that SWANCC “states more than once that Congress’ use of the term ‘navigable waters’ signifies that Congress intended to exercise its traditional authority over navigable waters, and not its broader power over all things that substantially affect commerce“). Yet, for decades, the EPA (of its own license) and the Corps (under the compulsion of an unreasoned and since discredited District Court order) have issued substantively identical regulatory definitions of “the waters of the United States” that completely ignore navigability and instead expand the CWA‘s coverage to the outer limits of the Court‘s New Deal-era Commerce Clause precedents.
III
This case demonstrates the unbounded breadth of the jurisdiction that the EPA and the Corps have asserted under the CWA. The regulatory definition applied to the Sacketts’ property declares “intrastate” waters, wetlands, and various other wet things to be “waters of the United States” if their “use, degradation or destruction . . . could affect interstate or foreign commerce.”
Nonetheless, under these boundless standards, the agencies have “asserted jurisdiction over virtually any parcel of land containing a channel or conduit . . . through which rainwater or drainage may occasionally or intermittently flow,” including “storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.” Rapanos, 547 U. S., at 722 (plurality opinion). The agencies’ definition “engulf[s] entire cities and immense arid wastelands” alike. Ibid. Indeed, because “the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface,” “[a]ny plot of land containing such a channel may potentially be regulated.” Ibid.
If this interpretation were correct, the only prudent move for any landowner in America would be to ask the Federal Government for permission before undertaking any kind of development. See Tr. of Oral Arg. 86, 116–117. This regime turns Congress’ traditionally limited navigation authority on its head. The baseline under the Constitution, the CWA, and the Court‘s precedents is state control of waters. See SWANCC, 531 U. S., at 174 (reaffirming “the States’ traditional and primary power over land and water use“); Leovy, 177 U. S., at 633 (repudiating an interpretation of the 1899 Act that would render practically every “creek or stream in the entire country” a “navigable water of the United States” and “subject the officers and agents of a State . . . to fine and imprisonment” for draining a swamp “unless permission [was] first obtained from the Secretary of War“). By contrast, the agencies’ interpretation amounts to a federal police power, exercised in the most aggressive possible way.
This is not to say that determining whether a water qualifies under the CWA is always easy. But, it is vital that we ask the right question in determining what constitutes “the waters of the United States“: whether the water is within Congress’ traditional authority over the interstate channels
IV
What happened to the CWA is indicative of deeper problems with the Court‘s Commerce Clause jurisprudence. The eclipse of Congress’ well-defined authority over the channels of interstate commerce tracks the Court‘s expansion of Congress’ power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Perhaps nowhere is this deviation more evident than in federal environmental law, much of which is uniquely dependent upon an expansive interpretation of the Commerce Clause. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 281–283 (1981); see also Brief for Claremont Institute‘s Center for Constitutional Jurisprudence as Amicus Curiae 17–25. And many environmental regulatory schemes seem to push even the limits of the Court‘s New Deal-era Commerce Clause precedents, see Hodel, 452 U. S., at 309–313 (Rehnquist, J., concurring in judgment), to say nothing of the Court‘s more recent precedents reining in the commerce power. See, e. g., SWANCC, 531 U. S., at 173–174; cf. Rancho Viejo, LLC v. Norton, 334 F. 3d 1158, 1160 (CADC 2003) (per curiam) (Roberts, J., dissenting from denial of rehearing en banc) (“The panel‘s approach in this case leads to the result that regulating the taking [under the Endangered Species Act] of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce among the several States’ ” (ellipsis omitted)).
The Court‘s opinion today curbs a serious expansion of federal authority that has simultaneously degraded States’ authority and diverted the Federal Government from its important role as guarantor of the Nation‘s great commercial water highways into something resembling “a local zoning board.” Rapanos, 547 U. S., at 738 (plurality opinion). But, wetlands are just the beginning of the problems raised by the agencies’ assertion of jurisdiction in this case. Despite our clear guidance in SWANCC that the CWA extends
Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, concurring in the judgment.
Like Justice Kavanaugh, “I would stick to the text.” Post, at 727 (opinion concurring in judgment). As he explains in the principal concurrence, our normal method of construing statutes identifies which wetlands the Clean Water Act covers—and the answer provided exceeds what the Court says today. Because the Act covers “the waters of the United States,” and those waters “includ[e]” all wetlands “adjacent” to other covered waters, the Act extends to those “adjacent” wetlands.
Vital to the Clean Water Act‘s project is the protection of wetlands—both those contiguous to covered waters and others nearby. As this Court (again, formerly) recognized, wetlands “serve to filter and purify water draining into adjacent bodies of water, and to slow the flow of surface runoff into lakes, rivers, and streams.” United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134 (1985) (citation omitted). Wetlands thus “function as integral parts of the aquatic environment“—protecting neighboring water if
Today‘s majority, though, believes Congress went too far. In the majority‘s view, the Act imposes unjustifiably “crushing consequences” for violations of its terms. Ante, at 660. And many of those violations, it thinks, are of no real concern, arising from “mundane” land-use conduct “like moving dirt.” Ante, at 669. Congress, the majority scolds, has unleashed the EPA to regulate “swimming pools[ ] and puddles,” wreaking untold havoc on “a staggering array of landowners.” Ante, at 659, 670. Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress‘s too-ambitious program of pollution control.
So the majority shelves the usual rules of interpretation—reading the text, determining what the words used there mean, and applying that ordinary understanding even if it conflicts with judges’ policy preferences. The majority‘s first pass through the statute is, as Justice Kavanaugh
Even assuming that thumb‘s existence, the majority still would be wrong. As Justice Kavanaugh notes, clear-statement rules operate (when they operate) to resolve problems of ambiguity and vagueness. See post, at 725; see also Bond v. United States, 572 U. S. 844, 859 (2014); United States v. Bass, 404 U. S. 336, 347 (1971). And no such problems are evident here. One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be—which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majority concludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to “correct” breadth. Those paying attention have seen this move before—actually, just last Term. In another case of environmental regulation (involving clean air), the Court invoked another clear-
And still more fundamentally, why ever have a thumb on the scale against the Clean Water Act‘s protections? The majority first invokes federalism. See ante, at 679–680. But as Justice Kavanaugh observes, “the Federal Government has long regulated the waters of the United States, including adjacent wetlands.” Post, at 725. The majority next raises the specter of criminal penalties for “indeterminate” conduct. See ante, at 680–681. But there is no peculiar indeterminacy in saying—as regulators have said for nearly a half century—that a wetland is covered both when it touches a covered water and when it is separated by only a dike, berm, dune, or similar barrier. (That standard is in fact more definite than a host of criminal laws I could name.) Today‘s pop-up clear-statement rule is explicable only as a reflexive response to Congress‘s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate. See ante, at 680 (complaining about Congress‘s protection of “vast” and “staggering” “additional area“). And that, too, recalls last Term, when I remarked on special canons “magically appearing as get-out-of-text-free cards” to stop the EPA from taking the measures Congress told it to. See West Virginia, 597 U. S., at ——— – ——— (dissenting opinion). There, the majority‘s non-textualism barred the EPA from
So I‘ll conclude, sadly, by repeating what I wrote last year, with the replacement of only a single word. “[T]he Court substitutes its own ideas about policymaking for Congress‘s. The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.” Id., at ———. Because that is not how I think our Government should work—more, because it is not how the Constitution thinks our Government should work—I respectfully concur in the judgment only.
Justice Kavanaugh, with whom Justice Sotomayor, Justice Kagan, and Justice Jackson join, concurring in the judgment.
The Clean Water Act generally prohibits dumping dredged or fill material without a permit into the “waters of the United States.”
The Ninth Circuit held that the wetlands on the Sacketts’ property are covered by the Clean Water Act because, as relevant here, the wetlands have a “significant nexus” to covered waters nearby. 8 F. 4th 1075, 1093 (2021). The Court today reverses the Ninth Circuit‘s judgment.
I agree with the Court‘s reversal of the Ninth Circuit. In particular, I agree with the Court‘s decision not to adopt the
I write separately because I respectfully disagree with the Court‘s new test for assessing when wetlands are covered by the Clean Water Act. The Court concludes that wetlands are covered by the Act only when the wetlands have a “continuous surface connection” to waters of the United States—that is, when the wetlands are “adjoining” covered waters. Ante, at 671, 684 (internal quotation marks omitted). In my view, the Court‘s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court‘s precedents. The Court‘s test narrows the Clean Water Act‘s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act‘s coverage of wetlands to only adjoining wetlands, the Court‘s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States. Therefore, I respectfully concur only in the Court‘s judgment.
I
The Clean Water Act generally prohibits dumping a “pollutant“—including dredged or fill material—into “navigable waters” without a permit.
As enacted in 1972, the Clean Water Act protected “the waters of the United States.”
Interpreting the text of the Act as amended in 1977, this Court has long held that the Act covers “adjacent” wetlands. See United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134–135, 138 (1985) (“Congress expressly stated that the term ‘waters’ included adjacent wetlands“); see also Rapanos v. United States, 547 U. S. 715, 742 (2006) (plurality opinion) (wetlands that “are ‘adjacent to’ ” waters of the United States are “covered by the Act“); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167, 172 (2001) (recognizing “Congress’ unequivocal” “approval of, the Corps’ regulations interpreting the [Act] to cover wetlands adjacent to navigable waters“). The Court has also ruled that the Act‘s coverage of adjacent wetlands does not extend to “isolated” wetlands. Id., at 168–172.
So the question here becomes the meaning of “adjacent” wetlands under the Clean Water Act. As a matter of ordinary meaning and longstanding agency practice, a wetland is
The Court and I agree that wetlands in the first category—that is, wetlands adjoining a covered water—are covered as adjacent wetlands. Ante, at 671–674. But the Court and I disagree about the second category—that is, wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. The Court concludes that wetlands in that second category are not covered as adjacent wetlands because those wetlands do not have a continuous surface connection to a covered water—in other words, those wetlands are not adjoining the covered water. I disagree because the statutory text (“adjacent“) does not require a continuous surface connection between those wetlands and covered waters.
The ordinary meaning of the term “adjacent” has not changed since Congress amended the Clean Water Act in 1977 to expressly cover “wetlands adjacent” to waters of the United States. 91 Stat. 1601;
In other contexts, this Court has recognized the important difference in the meaning of the terms “adjacent” and “adjoining” and has held that “adjacent” is broader than “adjoining or actually contiguous.” United States v. St. Anthony R. Co., 192 U. S. 524, 533 (1904). As an example, the St. Anthony case concerned a federal statute granting railroads the right to cut timber from “public lands adjacent” to a railroad right of way. Id., at 526, n. 1, 530. The Court held that timber could be taken from “adjacent” sections of land that were not “contiguous to or actually touching” the right of way. Id., at 538. The Court explained that if “the word ‘adjoining’ had been used instead of ‘adjacent,’ ” a railroad could not have taken the relevant timber. Ibid.
In short, the term “adjacent” is broader than “adjoining” and does not require that two objects actually touch. We
II
Longstanding agency practice reinforces the ordinary meaning of adjacency and demonstrates, contrary to the Court‘s conclusion today, that the term “adjacent” is broader than “adjoining.”
After the Act was passed in 1972, a key question quickly arose: Did “waters of the United States” include wetlands? By 1975, the Army Corps concluded that the term “waters of the United States” included “adjacent” wetlands. 40 Fed. Reg. 31324. In 1977, Congress itself made clear that “adjacent” wetlands were covered by the Act by amending the Act and enacting
Since 1977, when Congress explicitly included “adjacent” wetlands within the Act‘s coverage, the Army Corps has adopted a variety of interpretations of its authority over those wetlands—some more expansive and others less expansive. But throughout those 45 years and across all eight Presidential administrations, the Army Corps has always included in the definition of “adjacent wetlands” not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a man-made dike or barrier, natural river berm, beach dune, or the like.
- In 1977 and 1980, under President Carter, the Army Corps and EPA defined “adjacent” wetlands as including wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” 42 Fed. Reg. 37144; see 45 Fed. Reg. 85345.
- In 1986, under President Reagan, the Army Corps adopted a new regulatory provision defining “waters of the United States” and reaffirmed that “adjacent” wet
lands include wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” 51 Fed. Reg. 41210, 41251. - From 1986 until 2015, under Presidents Reagan, George H. W. Bush, Clinton, George W. Bush, and Obama, the regulations continued to cover wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” See
33 CFR § 328.3(c) (1991) ;40 CFR § 230.3(b) (1991) ;33 CFR § 328.3(c) (1998) ;40 CFR § 230.3(b) (1998) ;33 CFR § 328.3(c) (2005) ;40 CFR § 230.3(b) (2005) ;33 CFR § 328.3(c) (2010) ;40 CFR § 230.3(b) (2010) . - In 2015, under President Obama, the Army Corps and EPA promulgated a new rule, which again specified that “adjacent” wetlands include wetlands “separated by constructed dikes or barriers, natural river berms, beach dunes, and the like.” 80 Fed. Reg. 37105, 37116.
- In 2019 and 2020, under President Trump, the Army Corps and EPA repealed the 2015 rule and issued a new rule. But even following the repeal and new rule, adjacent wetlands included wetlands that are “physically separated” from certain covered waters “only by a natural berm, bank, dune, or similar natural feature” or “only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection . . . in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature.” 85 Fed. Reg. 22338, 22340 (2020).
- In 2023, under President Biden, the Army Corps and EPA once again issued a new rule that defined “adjacent” wetlands to include wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like.” 88 Fed. Reg. 3143–3144.
III
The Act covers “adjacent” wetlands. And adjacent wetlands is a broader category than adjoining wetlands. But instead of adhering to the ordinary meaning of “adjacent” wetlands, to the 45 years of consistent agency practice, and to this Court‘s precedents, the Court today adopts a test under which a wetland is covered only if the wetland has a “continuous surface connection” to a covered water—in other words, if it adjoins a covered water. Ante, at 684 (internal quotation marks omitted). The Court says that the wetland and the covered water must be “indistinguishable” from one another—in other words, there must be no “clear demarcation” between wetlands and covered waters. Ante, at 678 (internal quotation marks omitted).
The Court‘s “continuous surface connection” test disregards the ordinary meaning of “adjacent.” The Court‘s mistake is straightforward: The Court essentially reads “adjacent” to mean “adjoining.” As a result, the Court excludes wetlands that the text of the Clean Water Act covers—and that the Act since 1977 has always been interpreted to cover.
To bolster its unorthodox statutory interpretation, the Court resorts to a formula: “A minus B, which includes C.” Ante, at 675. That just seems to be a fancier way of arguing (against all indications of ordinary meaning) that “adjacent” means “adjoining.” But again the Court is imposing a restriction nowhere to be found in the text. In the end, the Court has no good answer for why Congress used the term “adjacent” instead of “adjoining” when Congress enacted
Recall again how the 1977 Act came about. In 1975, the Army Corps concluded that the 1972 Act‘s coverage of “waters of the United States” included “adjacent” wetlands. 40 Fed. Reg. 31324. Then in 1977, Congress adopted a new permitting program for a category of “waters of the United States.” Congress allocated to the Federal Government exclusive authority to issue Clean Water Act permits for dump
Moreover, Congress‘s 1977 decision was no accident. As this Court has previously recognized, “the scope of the Corps’ asserted jurisdiction over wetlands“—including the Corps’ decision to cover adjacent wetlands—“was specifically brought to Congress’ attention” in 1977, “and Congress rejected measures designed to curb the Corps’ jurisdiction.” United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 137 (1985). Subsequently, this Court has recognized that Congress‘s 1977 amendment made clear that the Act “cover[s] wetlands adjacent to navigable waters.” Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167 (2001); see Riverside Bayview, 474 U. S., at 138 (“Congress expressly stated that the term ‘waters’ included adjacent wetlands“).
Not surprisingly, in the years since 1977, no one has seriously disputed that the Act covers adjacent wetlands. And in light of the text of the Act, eight consecutive Presidential administrations have recognized that the Act covers adjacent wetlands and that adjacent wetlands include more than simply adjoining wetlands. The Court‘s analysis today therefore seems stuck in a bit of a time warp—relitigating an issue that Congress settled in 1977 and that this Court has long treated as settled: The Act covers adjacent wetlands. By
The Court also invokes federalism and vagueness concerns. The Court suggests that ambiguities or vagueness in federal statutes regulating private property should be construed in favor of the property owner, particularly given that States have traditionally regulated private property rights. See ante, at 679–680; see also Solid Waste Agency of Northern Cook Cty., 531 U. S., at 173–174. To begin with, the Federal Government has long regulated the waters of the United States, including adjacent wetlands.
In any event, the decisive point here is that the term “adjacent” in this statute is unambiguously broader than the term “adjoining.” On that critical interpretive question, there is no ambiguity. We should not create ambiguity where none exists. And we may not rewrite “adjacent” to mean the same thing as “adjoining,” as the Court does today.
Finally, contrary to the Court‘s suggestion otherwise, the analysis in this separate opinion centers on the “operative” text, “waters of the United States.” Ante, at 683–684. To recap: The 1972 Act covered “waters of the United States.” In 1977, when Congress allocated permitting authority, Congress expressly included “adjacent” wetlands within the “waters of the United States.” Since then, the Executive Branch and this Court have recognized that “waters of the United States” covers “adjacent” wetlands. Based on the text of the statute, as well as 45 years of consistent agency practice and this Court‘s precedents, I respectfully disagree with the Court‘s decision to interpret “waters of the United States” to include only adjoining wetlands and not adjacent wetlands.
IV
The difference between “adjacent” and “adjoining” in this context is not merely semantic or academic. The Court‘s rewriting of “adjacent” to mean “adjoining” will matter a
As those examples reveal, there is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters. Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland. 85 Fed. Reg. 22307; 88 Fed. Reg. 3095, 3118. Similarly, artificial barriers such as dikes and levees typically do not block all water flow, 85 Fed. Reg. 22312; 88 Fed. Reg. 3076, and those artificial structures were often built to control the surface water connection between the wetland and the water. 85 Fed. Reg. 22315; 88 Fed. Reg. 3118. The scientific evidence overwhelmingly demonstrates that wetlands separated from covered waters by those kinds of berms or barriers, for example, still play an important role in protecting neighboring and downstream waters, including by filtering pollutants, storing water, and providing flood
The Court‘s erroneous test not only will create real-world consequences for the waters of the United States, but also is sufficiently novel and vague (at least as a single standalone test) that it may create regulatory uncertainty for the Federal Government, the States, and regulated parties. As the Federal Government suggests, the continuous surface connection test raises “a host of thorny questions” and will lead to “potentially arbitrary results.” Brief for Respondents 29. For example, how difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered by the Clean Water Act? How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How “temporary” do “interruptions in surface connection” have to be for wetlands to still be covered? Ante, at 678. How does the test operate in areas where storms, floods, and erosion frequently shift or breach natural river berms? Can a continuous surface connection be established by a ditch, swale, pipe, or culvert? See 88 Fed. Reg. 3095. The Court covers wetlands separated from a water by an artificial barrier constructed illegally, see ante, at 678, n. 16, but why not also include barriers authorized by the Army Corps at a time when it would not have known that the barrier would cut off federal authority? The list goes on.
Put simply, the Court‘s atextual test—rewriting “adjacent” to mean “adjoining“—will produce real-world consequences for the waters of the United States and will generate regulatory uncertainty. I would stick to the text.
* * *
In sum, I agree with the Court‘s decision not to adopt the “significant nexus” test for adjacent wetlands. I respectfully disagree, however, with the Court‘s new “continuous surface connection” test. In my view, the Court‘s new test is overly narrow and inconsistent with the Act‘s coverage of adjacent wetlands. The Act covers adjacent wetlands, and a wetland is “adjacent” to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. The wetlands on the Sacketts’ property do not fall into either of those categories and therefore are not covered under the Act as I would interpret it. Therefore, like the Court, I would reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit and remand for further proceedings. But I respectfully concur only in the Court‘s judgment.
Reporter‘s Note
The attached opinion has been revised to reflect the usual publication and citation style of the United States Reports. The revised pagination makes available the official United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or filed briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:
p. 652, line 6, ”
p. 655, line 4 from bottom, ”Id., at 170, n. 5.” is inserted after
p. 673, line 8, “Appropriations” is inserted after “Harbors”
p. 683, line 15, “regulatory” is changed to “[regulatory]”
p. 704, line9, “authority” is changed to “power”
p. 708, line 4 from bottom, “economically gainful” is changed to “economic or gainful”
p. 709, n. 10, line 1, “included” is changed to “include”