Page:Sackett v. EPA (2023).pdf/73

6 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).

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.