Page:Sackett v. EPA (2023).pdf/5

Rh 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.” Rapanos, 547 U. S., at 755, 742. Pp. 18–22.

(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 §1344(g)(1). This argument fails for at least three reasons. First, the text of §§1362(7) and 1344(g) shows that “adjacent” cannot include wetlands that are merely nearby covered waters. Second, EPA’s argument cannot be reconciled with this Court’s repeated recognition that §1344(g)(1) “ ‘does not conclusively determine the construction to be placed on … the relevant definition of “navigable waters.” ’ ” SWANCC, 531 U. S., at 171. Third, the EPA