Page:Sackett v. EPA (2023).pdf/75

8 *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.

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. (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. (internal quotation marks