# Sackett v. EPA (2023)/Opinion of Justice Kavanaugh

SUPREME COURT OF THE UNITED STATES
No. 21–454
MICHAEL SACKETT, ET UX., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 25, 2023]
Justice Kavanaugh, with whom Justice Sotomayor, Justice Kagan, and Justice Jackson join, concurring in the judgment.
The Clean Water Act generally prohibits dumping dredged or fill material without a permit into the “waters of the United States.” 33 U. S. C. §§1311(a), 1344(a), 1362. The “waters of the United States” include wetlands that are “adjacent” to waters covered by the Act—for example, wetlands that are adjacent to covered rivers or lakes. §§1344(g), 1362(7). The question in this case is whether the wetlands on the Sacketts’ residential property are adjacent to covered waters and therefore covered under the Act.
The Ninth Circuit held that the wetlands on the Sacketts’ property are covered by the Clean Water Act because, as relevant here, the wetlands have a “significant nexus” to covered waters nearby. 8 F. 4th 1075, 1093 (2021). The Court today reverses the Ninth Circuit’s judgment.
I agree with the Court’s reversal of the Ninth Circuit. In particular, I agree with the Court’s decision not to adopt the “significant nexus” test for determining whether a wetland is covered under the Act. And I agree with the Court’s bottom-line judgment that the wetlands on the Sacketts’ ​property are not covered by the Act and are therefore not subject to permitting requirements.
I write separately because I respectfully disagree with the Court’s new test for assessing when wetlands are covered by the Clean Water Act. The Court concludes that wetlands are covered by the Act only when the wetlands have a “continuous surface connection” to waters of the United States—that is, when the wetlands are “adjoining” covered waters. Ante, at 20, 22 (internal quotation marks omitted). In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. By narrowing the Act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States. Therefore, I respectfully concur only in the Court’s judgment.
I
The Clean Water Act generally prohibits dumping a “pollutant”—including dredged or fill material—into “navigable waters” without a permit. 33 U. S. C. §§1311(a), 1344(a), 1362. The Act defines “navigable waters” as “the waters of the United States, including the territorial seas.” §1362(7).
As the Court today ultimately agrees, see ante, at 19, and ​the Sacketts acknowledge, see Tr. of Oral Arg. 7–8, 33–34, 56–57, the statutory term “waters of the United States” covers wetlands “adjacent” to waters of the United States—for example, wetlands adjacent to a river or lake that is itself a water of the United States. 33 U. S. C. §1344(g).
As enacted in 1972, the Clean Water Act protected “the waters of the United States.” §§1311(a), 1362(7), 1362(12). In 1975, the Army Corps interpreted “waters of the United States” to include wetlands “adjacent to other navigable waters.” 40 Fed. Reg. 31324. In 1977, Congress expressly adopted that same understanding of the Act, amending the Act to make clear that only the Federal Government, and not the States, may issue Clean Water Act permits for dumping dredged or fill material into certain “waters of the United States,” “including wetlands adjacent” to those covered waters. Clean Water Act, 91 Stat. 1601; 33 U. S. C. §1344(g). In that 1977 Act, Congress thus expressly recognized “adjacent wetlands” as “waters of the United States.”
Interpreting the text of the Act as amended in 1977, this Court has long held that the Act covers “adjacent” wetlands. See United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134–135, 138 (1985) (“Congress expressly stated that the term ‘waters’ included adjacent wetlands.”); see also Rapanos v. United States, 547 U. S. 715, 742 (2006) (plurality opinion) (wetlands that “are ‘adjacent to’ ” waters of the United States are “covered by the Act”); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167, 172 (2001) (recognizing “Congress’ unequivocal” “approval of, the Corps’ regulations interpreting the [Act] to cover wetlands adjacent to navigable waters”). The Court has also ruled that the Act’s coverage of adjacent wetlands does not extend to “isolated” wetlands. Id., at 168–172.
So the question here becomes the meaning of “adjacent” wetlands under the Clean Water Act. As a matter of ​ordinary meaning and longstanding agency practice, a wetland is “adjacent” to a covered water (i) if the wetland is adjoining—that is, contiguous to or bordering—a covered water—or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.
The Court and I agree that wetlands in the first category—that is, wetlands adjoining a covered water—are covered as adjacent wetlands. Ante, at 19–22. But the Court and I disagree about the second category—that is, wetlands separated from a covered water only by a manmade 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; 33 U. S. C. §1344(g). Then as now, “adjacent” means lying near or close to, neighboring, or not widely separated. Indeed, the definitions of “adjacent” are notably explicit that two things need not touch each other in order to be adjacent. “Adjacent” includes “adjoining” but is not limited to “adjoining.” See, e.g., Black’s Law Dictionary 62 (rev. 4th ed. 1968) (defining “adjacent” as “Lying near or close to; sometimes, contiguous; neighboring; … may not actually touch”); Black’s Law Dictionary 50 (11th ed. 2019) (defining “adjacent” as “Lying near or close to, but not necessarily touching”); see also, e.g., Webster’s Third New International Dictionary 26 (1976) (defining “adjacent” as ​“to lie near, border on”; “not distant or far off”; “nearby but not touching”).
By contrast to the Clean Water Act’s express inclusion of “adjacent” wetlands, other provisions of the Act use the narrower term “adjoining.” Compare 33 U. S. C. §1344(g) with §§1321(b)–(c) (“adjoining shorelines” and “adjoining shorelines to the navigable waters”); §1346(c) (“land adjoining the coastal recreation waters”); see also §1254(n)(4) (“estuary” includes certain bodies of water “having unimpaired natural connection with open sea”); §2802(5) (“ ‘coastal waters’ ” includes wetlands “having unimpaired connection with the open sea up to the head of tidal influence”). The difference in those two terms is critical to this case. Two objects are “adjoining” if they “are so joined or united to each other that no third object intervenes.” 1968 Black’s 62 (comparing “adjacent” with “adjoining”); see ibid. (“Adjoining” means “touching or contiguous, as distinguished from lying near to or adjacent”); see also Black’s Law Dictionary 38–39 (5th ed. 1979) (same); Webster’s Third 26–27 (similar). As applied to wetlands, a marsh is adjacent to a river even if separated by a levee, just as your neighbor’s house is adjacent to your house even if separated by a fence or an alley.
In other contexts, this Court has recognized the important difference in the meaning of the terms “adjacent” and “adjoining” and has held that “adjacent” is broader than “adjoining or actually contiguous.” United States v. St. Anthony R. Co., 192 U. S. 524, 533 (1904). As an example, the St. Anthony case concerned a federal statute granting railroads the right to cut timber from “public lands adjacent” to a railroad right of way. Id., at 526, n. 1, 530. The Court held that timber could be taken from “adjacent” sections of land that were not “contiguous to or actually touching” the right of way. Id., at 538. The Court explained that if “the word ‘adjoining’ had been used instead of ‘adjacent,’ ” a railroad could not have taken the relevant ​timber. Ibid.
In short, the term “adjacent” is broader than “adjoining” and does not require that two objects actually touch. We must presume that Congress used the term “adjacent” wetlands in 1977 to convey a different meaning than “adjoining” wetlands. See Russello v. United States, 464 U. S. 16, 23 (1983).
II
Longstanding agency practice reinforces the ordinary meaning of adjacency and demonstrates, contrary to the Court’s conclusion today, that the term “adjacent” is broader than “adjoining.”
After the Act was passed in 1972, a key question quickly arose: Did “waters of the United States” include wetlands? By 1975, the Army Corps concluded that the term “waters of the United States” included “adjacent” wetlands. 40 Fed. Reg. 31324. In 1977, Congress itself made clear that “adjacent” wetlands were covered by the Act by amending the Act and enacting §1344(g). 91 Stat. 1601.
Since 1977, when Congress explicitly included “adjacent” wetlands within the Act’s coverage, the Army Corps has adopted a variety of interpretations of its authority over those wetlands—some more expansive and others less expansive. But throughout those 45 years and across all eight Presidential administrations, the Army Corps has always included in the definition of “adjacent wetlands” not only wetlands adjoining covered waters but also those wetlands that are separated from covered waters by a manmade 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” wetlands include wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” 51 Fed. Reg. 41210, 41251.
* 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.
That longstanding and consistent agency interpretation reflects and reinforces the ordinary meaning of the statute. The eight administrations since 1977 have maintained dramatically different views of how to regulate the environment, including under the Clean Water Act. Some of those administrations promulgated very broad interpretations of adjacent wetlands. Others adopted far narrower interpretations. Yet all of those eight different administrations have recognized as a matter of law that the Clean Water Act’s coverage of adjacent wetlands means more than adjoining wetlands and also includes wetlands separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like. That consistency in interpretation is strong confirmation of the ordinary meaning of adjacent wetlands.
III
The Act covers “adjacent” wetlands. And adjacent wetlands is a broader category than adjoining wetlands. But instead of adhering to the ordinary meaning of “adjacent” wetlands, to the 45 years of consistent agency practice, and to this Court’s precedents, the Court today adopts a test under which a wetland is covered only if the wetland has a “continuous surface connection” to a covered water—in other words, if it adjoins a covered water. Ante, at 22 (internal quotation marks omitted). The Court says that the wetland and the covered water must be “indistinguishable” from one another—in other words, there must be no “clear demarcation” between wetlands and covered waters. Ante, at 21 (internal quotation marks ​omitted).
The Court’s “continuous surface connection” test disregards the ordinary meaning of “adjacent.” The Court’s mistake is straightforward: The Court essentially reads “adjacent” to mean “adjoining.” As a result, the Court excludes wetlands that the text of the Clean Water Act covers—and that the Act since 1977 has always been interpreted to cover.
In support of its narrower “continuous surface connection” interpretation of covered wetlands, the Court emphasizes that the 1972 Act’s overarching statutory term is “waters of the United States.” Ante, at 19. And the Court suggests that the term “waters of the United States” cannot be interpreted to cover “adjacent wetlands” but only “adjoining wetlands.” See ante, at 19–22. But in 1977, Congress itself expressly made clear that the “waters of the United States” include “adjacent” wetlands. 91 Stat. 1601. And Congress would not have used the word “adjacent” in 1977 if Congress actually meant “adjoining,” particularly because Congress used the word “adjoining” in several other places in the Clean Water Act. 33 U. S. C. §§1321(b)–(c), 1346(c); see also §§1254(n)(4), 2802(5).
To bolster its unorthodox statutory interpretation, the Court resorts to a formula: “A minus B, which includes C.” Ante, at 19. That just seems to be a fancier way of arguing (against all indications of ordinary meaning) that “adjacent” means “adjoining.” But again the Court is imposing a restriction nowhere to be found in the text. In the end, the Court has no good answer for why Congress used the term “adjacent” instead of “adjoining” when Congress enacted §1344(g) in 1977.
​Recall again how the 1977 Act came about. In 1975, the Army Corps concluded that the 1972 Act’s coverage of “waters of the United States” included “adjacent” wetlands. 40 Fed. Reg. 31324. Then in 1977, Congress adopted a new permitting program for a category of “waters of the United States.” Congress allocated to the Federal Government exclusive authority to issue Clean Water Act permits for dumping dredged or fill material into certain “waters of the United States,” “including wetlands adjacent thereto.” 91 Stat. 1601. Through that statutory text, Congress made clear its understanding that “waters of the United States” included “adjacent” wetlands—and indeed, Congress designed important federal-state permitting authorities around that precise understanding. Congress’s 1977 amendment did not “merely” express “an opinion” about the meaning of the Clean Water Act; rather, it reflected what Congress understood “its own prior acts to mean.” Bell v. New Jersey, 461 U. S. 773, 785, n. 12 (1983) (internal quotation marks omitted).
Moreover, Congress’s 1977 decision was no accident. As this Court has previously recognized, “the scope of the Corps’ asserted jurisdiction over wetlands”—including the Corps’ decision to cover adjacent wetlands—“was specifically brought to Congress’ attention” in 1977, “and Congress rejected measures designed to curb the Corps’ jurisdiction.” United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 137 (1985). Subsequently, this Court has recognized that Congress’s 1977 amendment made clear that the Act “cover[s] wetlands adjacent to navigable waters.” Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167 (2001); see Riverside Bayview, 474 U. S., at 138 (“Congress expressly stated that the term ‘waters’ included adjacent wetlands”).
Not surprisingly, in the years since 1977, no one has ​seriously disputed that the Act covers adjacent wetlands. And in light of the text of the Act, eight consecutive Presidential administrations have recognized that the Act covers adjacent wetlands and that adjacent wetlands include more than simply adjoining wetlands. The Court’s analysis today therefore seems stuck in a bit of a time warp—relitigating an issue that Congress settled in 1977 and that this Court has long treated as settled: The Act covers adjacent wetlands. By adopting a test that substitutes “adjoining” for “adjacent,” the Court today errs.
The Court also invokes federalism and vagueness concerns. The Court suggests that ambiguities or vagueness in federal statutes regulating private property should be construed in favor of the property owner, particularly given that States have traditionally regulated private property rights. See ante, at 23–25; see also Solid Waste Agency of Northern Cook Cty., 531 U. S., at 173–174. To begin with, the Federal Government has long regulated the waters of the United States, including adjacent wetlands.
In any event, the decisive point here is that the term “adjacent” in this statute is unambiguously broader than the term “adjoining.” On that critical interpretive question, there is no ambiguity. We should not create ambiguity where none exists. And we may not rewrite “adjacent” to mean the same thing as “adjoining,” as the Court does today.
Finally, contrary to the Court’s suggestion otherwise, the analysis in this separate opinion centers on the “operative” text, “waters of the United States.” Ante, at 27. To recap: The 1972 Act covered “waters of the United States.” In 1977, when Congress allocated permitting authority, Congress expressly included “adjacent” wetlands within the “waters of the United States.” Since then, the Executive Branch and this Court have recognized that “waters of the United States” covers “adjacent” wetlands. Based on the ​text of the statute, as well as 45 years of consistent agency practice and this Court’s precedents, I respectfully disagree with the Court’s decision to interpret “waters of the United States” to include only adjoining wetlands and not adjacent wetlands.
IV
The difference between “adjacent” and “adjoining” in this context is not merely semantic or academic. The Court’s rewriting of “adjacent” to mean “adjoining” will matter a great deal in the real world. In particular, the Court’s new and overly narrow test may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States. For example, the Mississippi River features an extensive levee system to prevent flooding. Under the Court’s “continuous surface connection” test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project. See Brief for Respondents 30. Likewise, federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries. See id., at 35. Those are just two of many examples of how the Court’s overly narrow view of the Clean Water Act will have concrete impact.
As those examples reveal, there is a good reason why Congress covered not only adjoining wetlands but also adjacent wetlands. Because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters. Natural barriers such as berms and dunes do not block all water flow and are in fact evidence of a regular connection between a water and a wetland. 85 Fed. Reg. ​22307; 88 Fed. Reg. 3095, 3118. Similarly, artificial barriers such as dikes and levees typically do not block all water flow, 85 Fed. Reg. 22312; 88 Fed. Reg. 3076, and those artificial structures were often built to control the surface water connection between the wetland and the water. 85 Fed. Reg. 22315; 88 Fed. Reg. 3118. The scientific evidence overwhelmingly demonstrates that wetlands separated from covered waters by those kinds of berms or barriers, for example, still play an important role in protecting neighboring and downstream waters, including by filtering pollutants, storing water, and providing flood control. See 88 Fed. Reg. 3118; 33 CFR §320.4(b)(2) (2022); see also United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134 (1985). In short, those adjacent wetlands may affect downstream water quality and flood control in many of the same ways that adjoining wetlands can.
The Court’s erroneous test not only will create real-world consequences for the waters of the United States, but also is sufficiently novel and vague (at least as a single standalone test) that it may create regulatory uncertainty for the Federal Government, the States, and regulated parties. As the Federal Government suggests, the continuous surface connection test raises “a host of thorny questions” and will lead to “potentially arbitrary results.” Brief for Respondents 29. For example, how difficult does it have to be to discern the boundary between a water and a wetland for the wetland to be covered by the Clean Water Act? How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How “temporary” do “interruptions in surface connection” have to be for wetlands to still be covered? Ante, at 21. How does the test operate in areas where ​storms, floods, and erosion frequently shift or breach natural river berms? Can a continuous surface connection be established by a ditch, swale, pipe, or culvert? See 88 Fed. Reg. 3095. The Court covers wetlands separated from a water by an artificial barrier constructed illegally, see ante, at 21–22, n. 16, but why not also include barriers authorized by the Army Corps at a time when it would not have known that the barrier would cut off federal authority? The list goes on.
Put simply, the Court’s atextual test—rewriting “adjacent” to mean “adjoining”—will produce real-world consequences for the waters of the United States and will generate regulatory uncertainty. I would stick to the text. There can be no debate, in my respectful view, that the key statutory term is “adjacent” and that adjacent wetlands is a broader category than adjoining wetlands. To be faithful to the statutory text, we cannot interpret “adjacent” wetlands to be the same thing as “adjoining” wetlands. *** In sum, I agree with the Court’s decision not to adopt the “significant nexus” test for adjacent wetlands. I respectfully disagree, however, with the Court’s new “continuous surface connection” test. In my view, the Court’s new test is overly narrow and inconsistent with the Act’s coverage of adjacent wetlands. The Act covers adjacent wetlands, and a wetland is “adjacent” to a covered water (i) if the wetland is contiguous to or bordering a covered water, or (ii) if the wetland is separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like. The wetlands on the Sacketts’ property do not fall into either of those categories and therefore are not covered under the Act as I would interpret it. Therefore, like the Court, I would reverse the judgment of the U. S. Court of Appeals for the Ninth Circuit and remand for further proceedings. But I respectfully ​concur only in the Court’s judgment.