Page:Sackett v. EPA (2023).pdf/4

Syllabus

wetlands” because the “presence of water is ‘universally regarded as the most basic feature of wetlands’ ” proves too much. Brief for Respondents 19. It is also tough to square with SWANCC’s exclusion of isolated ponds or Riverside Bayview’s extensive focus on the adjacency of wetlands to covered waters. Finally, it is difficult to see how the States’ “responsibilities and rights” in regulating water resources would remain “primary” if the EPA had such broad jurisdiction. §1251(b). Pp. 14–18.

(2) Statutory context shows that some wetlands nevertheless qualify as “waters of the United States.” Specifically, §1344(g)(1), which authorizes States to conduct certain permitting programs, specifies that discharges may be permitted into any waters of the United States, except for traditional navigable waters, “including wetlands adjacent thereto,” suggesting that at least some wetlands must qualify as “waters of the United States.” But §1344(g)(1) cannot define what wetlands the CWA regulates because it is not the operative provision that defines the Act’s reach. Instead, the reference to adjacent wetlands in §1344(g)(1) must be harmonized with “the waters of the United States,” which is the operative term that defines the CWA’s reach. Because the “adjacent” wetlands in §1344(g)(1) are “includ[ed]” within “waters of the United States,” these wetlands must qualify as “waters of the United States” in their own right, i.e., be indistinguishably part of a body of water that itself constitutes “waters” under the CWA. To hold otherwise would require implausibly concluding that Congress tucked an important expansion to the reach of the CWA into convoluted language in a relatively obscure provision concerning state permitting programs. Understanding the CWA to apply to wetlands that are distinguishable from otherwise covered “waters of the United States” would substantially broaden §1362(7) to define “navigable waters” as “waters of the United States and adjacent wetlands.” But §1344(g)(1)’s use of the term “including” makes clear that it does not purport to do any such thing. It merely reflects Congress’s assumption that certain “adjacent” wetlands are part of the “waters of the United States.”

To determine when a wetland is part of adjacent “waters of the United States,” the Court agrees with the Rapanos plurality that the use of “waters” in §1362(7) may be fairly read to include only wetlands that are “indistinguishable from waters of the United States.” This occurs only when wetlands have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.” 547 U. S., at 742.

In sum, the CWA extends to only wetlands that are “as a practical