Kavanaugh, J., concurring in judgment
omitted).
The Court’s “continuous surface connection” test disregards the ordinary meaning of “adjacent.” The Court’s mistake is straightforward: The Court essentially reads “adjacent” to mean “adjoining.” As a result, the Court excludes wetlands that the text of the Clean Water Act covers—and that the Act since 1977 has always been interpreted to cover.
In support of its narrower “continuous surface connection” interpretation of covered wetlands, the Court emphasizes that the 1972 Act’s overarching statutory term is “waters of the United States.” Ante, at 19. And the Court suggests that the term “waters of the United States” cannot be interpreted to cover “adjacent wetlands” but only “adjoining wetlands.” See ante, at 19–22. But in 1977, Congress itself expressly made clear that the “waters of the United States” include “adjacent” wetlands. 91 Stat. 1601. And Congress would not have used the word “adjacent” in 1977 if Congress actually meant “adjoining,” particularly because Congress used the word “adjoining” in several other places in the Clean Water Act. 33 U. S. C. §§1321(b)–(c), 1346(c); see also §§1254(n)(4), 2802(5).
To bolster its unorthodox statutory interpretation, the Court resorts to a formula: “A minus B, which includes C.” Ante, at 19. That just seems to be a fancier way of arguing (against all indications of ordinary meaning) that “adjacent” means “adjoining.” But again the Court is imposing a restriction nowhere to be found in the text. In the end, the Court has no good answer for why Congress used the term “adjacent” instead of “adjoining” when Congress enacted §1344(g) in 1977.[1]
- ↑ Perhaps recognizing the difficulty of reading the Act to mean “adjoining” when it actually says “adjacent,” the Court at one point suggests that “adjoining” is equivalent to “adjacent.” Ante, at 19–20. As a matter of ordinary meaning, as explained at length above, that is incorrect. Adjoining wetlands are a subset of adjacent wetlands, not the
