Page:Sackett v. EPA (2023).pdf/78

Rh 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 ; 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.” 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