Kavanaugh, J., concurring in judgment
Recall again how the 1977 Act came about. In 1975, the Army Corps concluded that the 1972 Act’s coverage of “waters of the United States” included “adjacent” wetlands. 40 Fed. Reg. 31324. Then in 1977, Congress adopted a new permitting program for a category of “waters of the United States.” Congress allocated to the Federal Government exclusive authority to issue Clean Water Act permits for dumping dredged or fill material into certain “waters of the United States,” “including wetlands adjacent thereto.” 91 Stat. 1601. Through that statutory text, Congress made clear its understanding that “waters of the United States” included “adjacent” wetlands—and indeed, Congress designed important federal-state permitting authorities around that precise understanding. Congress’s 1977 amendment did not “merely” express “an opinion” about the meaning of the Clean Water Act; rather, it reflected what Congress understood “its own prior acts to mean.” Bell v. New Jersey, 461 U. S. 773, 785, n. 12 (1983) (internal quotation marks omitted).
Moreover, Congress’s 1977 decision was no accident. As this Court has previously recognized, “the scope of the Corps’ asserted jurisdiction over wetlands”—including the Corps’ decision to cover adjacent wetlands—“was specifically brought to Congress’ attention” in 1977, “and Congress rejected measures designed to curb the Corps’ jurisdiction.” United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 137 (1985). Subsequently, this Court has recognized that Congress’s 1977 amendment made clear that the Act “cover[s] wetlands adjacent to navigable waters.” Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 167 (2001); see Riverside Bayview, 474 U. S., at 138 (“Congress expressly stated that the term ‘waters’ included adjacent wetlands”).
Not surprisingly, in the years since 1977, no one has
whole set of adjacent wetlands.
