Kavanaugh, J., concurring in judgment
the Sacketts acknowledge, see Tr. of Oral Arg. 7–8, 33–34, 56–57, the statutory term “waters of the United States” covers wetlands “adjacent” to waters of the United States—for example, wetlands adjacent to a river or lake that is itself a water of the United States. 33 U. S. C. §1344(g).
As enacted in 1972, the Clean Water Act protected “the waters of the United States.” §§1311(a), 1362(7), 1362(12). In 1975, the Army Corps interpreted “waters of the United States” to include wetlands “adjacent to other navigable waters.” 40 Fed. Reg. 31324. In 1977, Congress expressly adopted that same understanding of the Act, amending the Act to make clear that only the Federal Government, and not the States, may issue Clean Water Act permits for dumping dredged or fill material into certain “waters of the United States,” “including wetlands adjacent” to those covered waters. Clean Water Act, 91 Stat. 1601; 33 U. S. C. §1344(g). In that 1977 Act, Congress thus expressly recognized “adjacent wetlands” as “waters of the United States.”
Interpreting the text of the Act as amended in 1977, this Court has long held that the Act covers “adjacent” wetlands. See United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 134–135, 138 (1985) (“Congress expressly stated that the term ‘waters’ included adjacent wetlands.”); see also Rapanos v. United States, 547 U. S. 715, 742 (2006) (plurality opinion) (wetlands that “are ‘adjacent to’ ” waters of the United States are “covered by the Act”); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167, 172 (2001) (recognizing “Congress’ unequivocal” “approval of, the Corps’ regulations interpreting the [Act] to cover wetlands adjacent to navigable waters”). The Court has also ruled that the Act’s coverage of adjacent wetlands does not extend to “isolated” wetlands. Id., at 168–172.
So the question here becomes the meaning of “adjacent” wetlands under the Clean Water Act. As a matter of
