Kavanaugh, J., concurring in judgment
“to lie near, border on”; “not distant or far off”; “nearby but not touching”).
By contrast to the Clean Water Act’s express inclusion of “adjacent” wetlands, other provisions of the Act use the narrower term “adjoining.” Compare 33 U. S. C. §1344(g) with §§1321(b)–(c) (“adjoining shorelines” and “adjoining shorelines to the navigable waters”); §1346(c) (“land adjoining the coastal recreation waters”); see also §1254(n)(4) (“estuary” includes certain bodies of water “having unimpaired natural connection with open sea”); §2802(5) (“ ‘coastal waters’ ” includes wetlands “having unimpaired connection with the open sea up to the head of tidal influence”). The difference in those two terms is critical to this case. Two objects are “adjoining” if they “are so joined or united to each other that no third object intervenes.” 1968 Black’s 62 (comparing “adjacent” with “adjoining”); see ibid. (“Adjoining” means “touching or contiguous, as distinguished from lying near to or adjacent”); see also Black’s Law Dictionary 38–39 (5th ed. 1979) (same); Webster’s Third 26–27 (similar). As applied to wetlands, a marsh is adjacent to a river even if separated by a levee, just as your neighbor’s house is adjacent to your house even if separated by a fence or an alley.
In other contexts, this Court has recognized the important difference in the meaning of the terms “adjacent” and “adjoining” and has held that “adjacent” is broader than “adjoining or actually contiguous.” United States v. St. Anthony R. Co., 192 U. S. 524, 533 (1904). As an example, the St. Anthony case concerned a federal statute granting railroads the right to cut timber from “public lands adjacent” to a railroad right of way. Id., at 526, n. 1, 530. The Court held that timber could be taken from “adjacent” sections of land that were not “contiguous to or actually touching” the right of way. Id., at 538. The Court explained that if “the word ‘adjoining’ had been used instead of ‘adjacent,’ ” a railroad could not have taken the relevant
