Cite as: 598 U. S. ____ (2023)
7
Kavanaugh, J., concurring in judgment
37144; see 45 Fed. Reg. 85345.
- In 1986, under President Reagan, the Army Corps adopted a new regulatory provision defining “waters of the United States” and reaffirmed that “adjacent” wetlands include wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” 51 Fed. Reg. 41210, 41251.
- From 1986 until 2015, under Presidents Reagan, George H. W. Bush, Clinton, George W. Bush, and Obama, the regulations continued to cover wetlands “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” See 33 CFR §328.3(c) (1991); 40 CFR §230.3(b) (1991); 33 CFR §328.3(c) (1998); 40 CFR §230.3(b) (1998); 33 CFR §328.3(c) (2005); 40 CFR §230.3(b) (2005); 33 CFR §328.3(c) (2010); 40 CFR §230.3(b) (2010).
- In 2015, under President Obama, the Army Corps and EPA promulgated a new rule, which again specified that “adjacent” wetlands include wetlands “separated by constructed dikes or barriers, natural river berms, beach dunes, and the like.” 80 Fed. Reg. 37105, 37116.
- In 2019 and 2020, under President Trump, the Army Corps and EPA repealed the 2015 rule and issued a new rule. But even following the repeal and new rule, adjacent wetlands included wetlands that are “physically separated” from certain covered waters “only by a natural berm, bank, dune, or similar natural feature” or “only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection … in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature.” 85 Fed. Reg. 22338, 22340 (2020).
