rapanos et et al argued february decided june relevant clean water act cwa act makes unlawful discharge dredged fill material navigable waters without permit defines navigable waters waters including territorial seas army corps engineers corps issues permits discharge dredged fill material navigable waters interprets waters expansively include traditional navigable waters cfr also defined waters ributaries waters wetlands adjacent waters tributaries djacent wetlands include bordering contiguous neighboring waters even separated waters dikes like cases involve four michigan wetlands lying near ditches drains eventually empty traditional navigable waters brought civil enforcement proceedings rapanos petitioners backfilled three areas without permit district found federal jurisdiction wetlands adjacent waters held petitioners liable cwa violations affirming sixth circuit found federal jurisdiction based sites hydrologic connections nearby ditches drains remote navigable waters carabell petitioners denied permit deposit fill wetland separated drainage ditch impermeable berm carabells sued district found federal jurisdiction site affirming sixth circuit held wetland adjacent navigable waters held judgments vacated cases remanded vacated remanded justice scalia joined chief justice justice thomas justice alito concluded phrase waters includes relatively permanent standing continuously flowing bodies water forming geographic features described ordinary parlance streams oceans rivers lakes webster new international dictionary ed include channels water flows intermittently ephemerally channels periodically provide drainage rainfall corps expansive interpretation phrase thus based permissible construction statute chevron natural resources defense council pp meaning navigable waters cwa broader traditional definition found daniel ball wall see solid waste agency northern cook cty army corps engineers swancc riverside bayview homes cwa authorizes federal jurisdiction waters use definite article plural number waters show plainly refer water general narrowly water found streams oceans rivers lakes webster new international dictionary terms connote relatively permanent bodies water opposed ordinarily dry channels water occasionally intermittently flows pp act use traditional phrase navigable waters confirms cwa confers jurisdiction relatively permanent bodies water traditionally waters included discrete bodies water term still carries original substance swancc supra subsequent interpretation waters cwa likewise confirms limitation see riverside bayview supra cwa categorizes channels conduits typically carry intermittent flows water separately navigable waters including definition sources moreover foregoing definition waters consistent cwa stated policy recognize preserve protect primary responsibilities rights plan development use land water resources addition waters hardly qualifies clear manifest statement congress needed authorize intrusion area traditional state authority regulation authorize federal action stretches limits congress commerce power see swancc supra pp wetland may considered adjacent remote waters based mere hydrologic connection riverside bayview rested inherent ambiguity defining water ends abutting adjacent wetlands begin permitting corps rely ecological considerations resolve ambiguity favor treating abutting wetlands waters isolated ponds waters right see swancc supra present problem justifying invocation ecological factors thus wetlands continuous surface connection bodies waters right clear demarcation two adjacent waters covered act establishing coverage rapanos carabell sites requires finding adjacent channel contains relatively permanent wate wetland continuous surface connection water making difficult determine water ends wetland begins pp sixth circuit applied incorrect standard determine whether wetlands issue covered waters paucity record cases remanded proceedings justice kennedy concluded sixth circuit correctly recognized water wetland constitutes navigable waters act possesses significant nexus waters navigable fact reasonably made solid waste agency northern cook cty army corps engineers swancc consider factors necessary determine lands question requisite nexus riverside bayview homes swancc establish framework inquiry nexus required must assessed terms act goals purposes congress enacted law restore maintain chemical physical biological integrity nation waters pursued objective restricting dumping filling waters rationale act wetlands regulation corps recognized wetlands perform critical functions related integrity waters pollutant trapping flood control runoff storage accordingly wetlands possess requisite nexus thus come within statutory phrase navigable waters wetlands alone combination similarly situated lands region significantly affect chemical physical biological integrity covered waters understood navigable traditional sense contrast effects water quality speculative insubstantial fall outside zone fairly encompassed term navigable waters corps theory jurisdiction cases adjacency tributaries however remote insubstantial goes beyond riverside bayview holding assertion jurisdiction rest case breadth corps existing standard tributaries seems leave room regulating drains ditches streams remote water carrying minor toward precludes standard adoption determinative measure whether adjacent wetlands likely play important role integrity aquatic system comprising navigable waters traditionally understood absent specific regulations corps must establish significant nexus basis seeking regulate wetlands based adjacency nonnavigable tributaries order avoid unreasonable applications act instant cases record contains evidence pointing possible significant nexus neither agency reviewing courts considered issue terms thus cases remanded proceedings pp scalia announced judgment delivered opinion roberts thomas alito joined roberts filed concurring opinion kennedy filed opinion concurring judgment stevens filed dissenting opinion souter ginsburg breyer joined breyer filed dissenting opinion john rapanos et et petitioners june carabell et petitioners army corps engineers et al writs certiorari appeals sixth circuit june justice scalia announced judgment delivered opinion chief justice justice thomas justice alito join april petitioner john rapanos backfilled wetlands parcel land michigan owned sought develop parcel included acres land soil conditions nearest body navigable water miles away rapanos regulators informed rapanos saturated fields waters filled without permit twelve years criminal civil litigation ensued burden federal regulation deposit fill material locations denominated waters trivial deciding whether grant deny permit army corps engineers corps exercises discretion enlightened despot relying factors economics aesthetics recreation general needs welfare people cfr average applicant individual permit spends days completing process average applicant nationwide permit spends days counting costs mitigation design changes sunding zilberman economics environmental regulation licensing assessment recent changes wetland permitting process natural resources ver billion spent year private public sectors obtaining wetlands permits costs avoided clean water act impose criminal liability well steep civil fines broad range ordinary industrial commercial activities hanousek thomas dissenting denial certiorari litigation example backfilling wet fields rapanos faced months prison hundreds thousands dollars criminal civil fines see rapanos enforcement proceedings rapanos small part immense expansion federal regulation land use occurred clean water act without change governing statute past five presidential administrations last three decades corps environmental protection agency epa interpreted jurisdiction waters cover million acres swampy lands including half alaska area size california lower beginning corps also asserted jurisdiction virtually parcel land containing channel conduit whether natural broad narrow permanent ephemeral rainwater drainage may occasionally intermittently flow view federally regulated waters include storm drains roadside ditches ripples sand desert may contain water year lands covered floodwaters every years include land containing storm sewers desert washes statutory waters engulf entire cities immense arid wastelands fact entire land area lies drainage basin endless network visible channels furrows entire surface containing water ephemerally wherever rain falls plot land containing channel may potentially regulated water congress passed clean water act cwa act act stated objective restore maintain chemical physical biological integrity nation waters stat act also policy congress recognize preserve protect primary responsibilities rights prevent reduce eliminate pollution plan development use including restoration preservation enhancement land water resources consult administrator exercise authority chapter one statute principal provisions provides discharge pollutant person shall unlawful discharge pollutant defined broadly include addition pollutant navigable waters point source pollutant defined broadly include traditional contaminants also solids dredged spoil rock sand cellar dirt relevant cwa defines navigable waters waters including territorial seas act also provides certain exceptions prohibition discharge pollutant person section authorizes administrator epa issue permit discharge pollutant notwithstanding section title section authorizes secretary army acting corps issue permits discharge dredged fill material navigable waters specified disposal sites discharge dredged fill material unlike traditional water pollutants solids readily wash downstream consider today century prior cwa interpreted phrase navigable waters act predecessor statutes refer interstate waters navigable fact readily susceptible rendered daniel ball wall see also appalachian elec power passage cwa corps initially adopted traditional judicial definition act term navigable waters see fed reg codified cfr see also solid waste agency northern cook cty army corps engineers swancc district enjoined regulations narrow natural resources defense council callaway supp dc corps adopted far broader definition see fed reg fed reg corps new regulations deliberately sought extend definition waters outer limits congress commerce power see corps current regulations interpret waters include addition traditional interstate navigable waters cfr interstate waters including interstate wetlands waters intrastate lakes rivers streams including intermittent streams mudflats sandflats wetlands sloughs prairie potholes wet meadows playa lakes natural ponds use degradation destruction affect interstate foreign commerce ributaries waters etlands adjacent waters tributaries waters wetlands regulation defines adjacent wetlands bordering contiguous neighboring waters specifically provides etlands separated waters dikes barriers natural river berms beach dunes like wetlands ibid first addressed proper interpretation phrase waters riverside bayview homes case concerned wetland adjacent body navigable water area characterized saturated soil conditions wetland vegetation extended beyond boundary respondent property navigable waterway see also cfr noting transition water solid ground necessarily even typically abrupt one corps must necessarily choose point water ends land begins upheld corps interpretation waters include wetlands actually abut ted traditional navigable waters following decision riverside bayview corps adopted increasingly broad interpretations regulations act example clarify reach jurisdiction corps announced migratory bird rule purported extend jurisdiction intrastate waters hich used habitat migratory birds fed reg see also swancc supra addition corps interpreted regulations include ephemeral streams drainage ditches tributaries part waters see cfr provided perceptible ordinary high water mark defined fed reg interpretation extended waters virtually land feature rainwater drainage passes leaves visible mark even presence litter debris cfr see also general accounting office report chairman subcommittee energy policy natural resources regulating affairs committee government reform house representatives waters wetlands corps engineers needs evaluate district office practices determining diction pp hereinafter gao report http internet materials visited june available clerk case file prior decision swancc lower courts upheld application expansive definition tributaries entities storm sewers contained flow covered waters heavy rainfall eidson dry arroyos connected remote waters flow groundwater centuries quivira mining epa swancc considered application corps migratory bird rule abandoned sand gravel pit northern illinois observing significant nexus wetlands waters informed reading cwa riverside bayview emphasis added held riverside bayview establish jurisdiction corps extends ponds adjacent open water emphasis deleted contrary held nonnavigable isolated intrastate waters unlike wetlands issue riverside bayview actually abu navigable waterway included waters following decision swancc corps significantly revise theory federal jurisdiction corps provided notice proposed rulemaking light swancc fed reg ultimately amend published regulations swancc directly address tributaries corps notified field staff continue assert jurisdiction traditional navigable waters generally speaking tributary systems adjacent wetlands fed reg addition swancc overrule riverside bayview corps continues assert jurisdiction waters traditional navigable waters tributaries fed reg quoting cfr even swancc lower courts continued uphold corps sweeping assertions jurisdiction ephemeral channels drains tributaries example courts held jurisdictional tributaries include intermittent flow surface water approximately miles natural streams manmade ditches paralleling crossing treacy newdunn roadside ditch whose water took winding path chesapeake bay deaton irrigation ditches drains intermittently connect covered waters community assn restoration environment henry bosma dairy headwaters talent irrigation implausibly washes arroyos arid development site located middle desert water courses periods heavy rain save sonoran flowers judicial constructions tributaries outliers rather reflect breadth corps determinations field corps enforcement practices vary somewhat district district definitions used make jurisdictional determinations deliberately left vague gao report see also district offices corps treated waters typically dry land features arroyos coulees washes well channels might little water flow given year also applied definition manmade intermittently flowing features drain tiles storm drains systems culverts omitted addition tributaries corps lower courts also continued define adjacent wetlands broadly swancc example corps district offices concluded wetlands adjacent covered waters hydrologically connected directional sheet flow storm events gao report lie within floodplain body water connected navigable water flooding average every years others concluded presence within feet tributary automatically renders wetland adjacent jurisdictional corps successfully defended theories adjacency courts even swancc excision isolated waters wetlands act coverage one held since swancc wetlands separated flood control channels berms atop ran maintenance roads significant nexus covered waters inter alia lay within year floodplain tidal waters baccarat fremont developers llc army corps engineers one cases us today sixth circuit held agreement majority courts hydrological connection navigable waters required abutment requirement swancc rapanos ii even insubstantial hydrologic connection may held constitute significant nexus one distinguished swancc ground molecule water residing one pits ponds swancc mix molecules bodies water whereas case water molecules currently present wetlands inevitably flow towards mix water connecting bodies drop rainwater landing site certain intermingle water nearby river rueth development supp nd ind ii consolidated cases consider whether four michigan wetlands lie near ditches drains eventually empty traditional navigable waters constitute waters within meaning act petitioners rapanos affiliated businesses deposited fill material without permit wetlands three sites near midland michigan salzburg site hines road site pine river site wetlands salzburg site connected drain drains hoppler creek flows kawkawlin river empties saginaw bay lake huron see brief wetlands hines road site connected something called rose drain surface connection tittabawassee river app pet cert pp wetlands pine river site surface connection pine river flows lake huron clear whether connections wetlands nearby drains ditches continuous intermittent whether nearby drains ditches contain continuous merely occasional flows water brought civil enforcement proceedings rapanos petitioners district found three described wetlands within federal jurisdiction adjacent waters held petitioners liable violations cwa sites appeal appeals sixth circuit affirmed holding federal jurisdiction wetlands three sites hydrological connections three sites corresponding adjacent tributaries navigable waters petitioners carabells denied permit deposit fill material wetland located triangular parcel land one mile lake clair drainage ditch runs along one side wetland separated berm berm largely entirely impermeable water blocks drainage wetland though may permit occasional overflow ditch ditch empties another ditch drain connects auvase creek empties lake clair see app pet cert pp exhausting administrative appeals carabell petitioners filed suit district challenging exercise federal regulatory jurisdiction site district ruled federal jurisdiction wetland adjacent neighboring tributaries navigable waters significant nexus sixth circuit affirmed holding carabell wetland adjacent navigable waters carabell granted certiorari consolidated cases decide whether wetlands constitute waters act whether act constitutional iii rapanos petitioners contend terms navigable waters waters act must limited traditional definition daniel ball required waters navigable fact susceptible rendered see definition applied wholesale cwa act uses phrase navigable waters defined term definition simply waters moreover act provides certain circumstances substitution state federal jurisdiction navigable waters waters presently used susceptible use natural condition reasonable improvement means transport interstate foreign commerce including wetlands adjacent thereto emphasis added provision shows act term navigable waters includes something traditional navigable waters twice stated meaning navigable waters act broader traditional understanding term swancc riverside bayview also emphasized however qualifier navigable devoid significance swancc supra need decide precise extent qualifiers navigable restrict coverage act whatever scope qualifiers cwa authorizes federal jurisdiction waters natural definition term waters prior subsequent judicial constructions clear evidence provisions statute canons construction confirm waters bear expansive meaning corps give corps expansive approach might arguable csa defined navigable waters water waters something else use definite article plural number waters show plainly refer water general form waters refers narrowly water found streams bodies forming geographical features oceans rivers lakes flowing moving masses waves floods making streams bodies webster new international dictionary ed hereinafter webster second definition waters include relatively permanent standing flowing bodies definition refers water found streams oceans rivers lakes bodies water forming geographical features ibid terms connote continuously present fixed bodies water opposed ordinarily dry channels water occasionally intermittently flows even least substantial definition terms namely streams connotes continuous flow water permanent channel especially used company terms rivers lakes oceans none terms encompasses transitory puddles ephemeral flows water restriction waters exclude channels containing merely intermittent ephemeral flow also accords commonsense understanding term applying definition ephemeral streams wet meadows storm sewers culverts directional sheet flow storm events drain tiles drainage ditches dry arroyos middle desert corps stretched term waters beyond parody plain language statute simply authorize land waters approach federal jurisdiction addition act use traditional phrase navigable waters defined term confirms confers jurisdiction relatively permanent bodies water act adopted traditional term predecessor statutes see swancc stevens dissenting traditional understanding navigable waters included discrete bodies water example daniel ball used terms waters rivers interchangeably appalachian electric consistently referred navigable waters waterways plainly waters navigable fact susceptible rendered term include ephemeral flows noted swancc traditional term navigable waters even though defined waters carries original substance one thing give word limited effect quite another give effect whatever limited effect includes bare minimum ordinary presence water subsequent interpretation phrase waters cwa likewise confirms limitation scope riverside bayview stated phrase act referred primarily rivers streams hydrographic features conventionally identifiable wetlands adjacent features emphasis added thus echoed dictionary definition waters referring streams bodies forming geographical features oceans rivers lakes webster second emphasis added though upheld case inclusion wetlands abutting hydrographic featur principally due difficulty drawing clear boundary two see part iv infra nowhere suggest waters expanded include right entities hydrographic features conventionally identifiable likewise riverside bayview swancc repeatedly described navigable waters covered act open water open waters see riverside bayview supra swancc supra rational interpretation typically dry channels described open waters significant cwa categorizes channels conduits typically carry intermittent flows water separately navigable waters including definition source act defines discernible confined discrete conveyance including limited pipe ditch channel tunnel conduit well discrete fissure container rolling stock concentrated animal feeding operation vessel floating craft pollutants may discharged also defines addition pollutant navigable waters point source emphases added definitions thus conceive point sources navigable waters separate distinct categories definition discharge make little sense two categories significantly overlapping separate classification ditch es channel conduit terms ordinarily used describe watercourses intermittent waters typically flow shows large waters moreover foregoing definition waters consistent cwa stated policy congress recognize preserve protect primary responsibilities rights prevent reduce eliminate pollution plan development use including restoration preservation enhancement land water resources statement policy included act enacted see stat prior addition optional state administration program amendments see stat thus policy plainly referred something beyond subsequently added state administration program expansive theory advanced corps rather preserv ing primary rights responsibilities brought virtually plan ning development use land water resources federal control therefore unlikely reading phrase waters even phrase waters ambiguous applied intermittent flows canons construction establish corps interpretation statute impermissible noted swancc government expansive interpretation result significant impingement traditional primary power land water use hess port authority corporation extensive federal jurisdiction urged government authorize corps function de facto regulator immense stretches intrastate land authority agency shown willingness exercise scope discretion befit local zoning board see cfr ordinarily expect clear manifest statement congress authorize unprecedented intrusion traditional state authority see bfp resolution trust corporation phrase waters hardly qualifies likewise noted swancc corps interpretation stretches outer limits congress commerce power raises difficult questions ultimate scope power see sum plausible interpretation phrase waters includes relatively permanent standing continuously flowing bodies water forming geographic features described ordinary parlance streams oceans rivers lakes see webster second phrase include channels water flows intermittently ephemerally channels periodically provide drainage rainfall corps expansive interpretation waters thus based permissible construction statute chevron natural resources defense council iv carabell sixth circuit held nearby ditch constituted tributary thus water cfr see likewise rapanos sixth circuit held nearby ditches tributaries rapanos ii also stated even ditches waters wetlands adjacent remote traditional navigable waters virtue wetlands hydrological connection see statement reflects practice corps district offices may assert jurisdiction wetland without regulating ditch connecting water gao report therefore address part whether wetland may considered adjacent remote waters mere hydrologic connection riverside bayview noted textual difficulty including wetlands subset waters purely linguistic level may appear unreasonable classify wet otherwise acknowledged however inherent ambiguity drawing boundaries waters corps must necessarily choose point water ends land begins common experience tells us often easy task transition water solid ground necessarily even typically abrupt one rather open waters dry land may lie shallows marshes mudflats swamps bogs short huge array areas wholly aquatic nevertheless fall far short dry land continuum find limit far obvious ibid inherent ambiguity deferred agency inclusion wetlands actually abut ting traditional navigable waters faced problem defining bounds regulatory authority held agency reasonably conclude wetland adjoin ed waters part waters difficulty delineating boundary water land central reasoning case view breadth federal regulatory authority contemplated act inherent difficulties defining precise bounds regulable waters corps ecological judgment relationship waters adjacent wetlands provides adequate basis legal judgment adjacent wetlands may defined waters act emphasis added characterized holding riverside bayview swancc referred close connection waters wetlands gradually blend significant nexus wetlands waters informed reading cwa riverside bayview homes emphasis added particular swancc rejected notion ecological considerations upon corps relied riverside bayview upon dissent repeatedly relies today see post provided independent basis including entities like wetlands ephemeral streams within phrase waters swancc found ecological considerations irrelevant question whether physically isolated waters come within corps jurisdiction thus confirmed riverside bayview rested upon inherent ambiguity defining water ends abutting adjacent wetlands begin permitting corps reliance ecological considerations resolve ambiguity favor treating abutting wetlands waters isolated ponds waters right see presented problem justified invocation ecological factors treat therefore wetlands continuous surface connection bodies waters right clear demarcation waters wetlands adjacent waters covered act wetlands intermittent physically remote hydrologic connection waters implicate problem riverside bayview thus lack necessary connection covered waters described significant nexus swancc thus establishing wetlands rapanos carabell sites covered act requires two findings first adjacent channel contains wate relatively permanent body water connected traditional interstate navigable waters second wetland continuous surface connection water making difficult determine water ends wetland begins respondents amici urge restrictions scope navigable waters frustrate enforcement traditional water polluters definition navigable waters applies entire statute respondents contend water polluters able evade permitting requirement simply discharging pollutants noncovered intermittent watercourses lie upstream covered waters see tr oral arg though decide issue reason suppose construction today significantly affects enforcement inasmuch lower courts applying characterized intermittent channels waters act forbid addition pollutant directly navigable waters point source rather addition pollutant navigable waters emphasis added thus time cwa enactment lower courts held discharge intermittent channels pollutant naturally washes downstream likely violates even pollutants discharged point source emit directly covered waters pass conveyances velsicol chemical supp wd municipal sewer system separated point source covered navigable waters see also sierra club el paso gold mines miles tunnel separated point source navigable waters fact many courts held upstream intermittently flowing channels constitute point sources act definition point source includes pipe ditch channel tunnel conduit well discrete fissure container rolling stock concentrated animal feeding operation vessel floating craft pollutants may discharged held act makes plain point source need original source pollutant need convey pollutant waters south water management dist miccosukee tribe cases holding intervening channel point source include ortiz storm drain carried flushed chemicals toilet colorado river point source dague burlington culvert connecting two bodies navigable water point source rev grounds courts even adopted indirect discharge rationale point source rationale alternative applied facts see concerned area residents environment southview farm either view however lower courts seen need classify intervening conduits waters contrast pollutants normally covered permitting requirement dredged fill material typically deposited sole purpose staying put normally wash thus normally constitute addition navigable waters deposited upstream isolated wetlands act recognizes distinction providing separate permitting program discharges appear therefore interpretation adopt today significantly reduces scope act respondents also urge narrower interpretation waters impose difficult burden proof enforcement proceedings requiring agency demonstrate downstream flow pollutant along intermittent channel traditional waters see tr oral arg noted lower courts generally rely characterization intervening channels waters applying traditional pollutants subject moreover proof downstream flow pollutants required appears substantially similar identical proof hydrologic connection required sixth circuit theory jurisdiction prove upstream channel wetland wate see rapanos ii compare app pet cert testimony hydrologic connections based observation surface water connections southview farm supra testimony discharges based observation flow polluted water either case agency must prove waters ultimately reach covered waters finally respondents many amici admonish narrowing definition waters hamper federal efforts preserve nation wetlands clear state local conservation efforts cwa explicitly calls see way inadequate goal preservation event comprehensive national wetlands protection act us wis dom statute post opinion stevens beyond ken clear however congress enact one granted corps jurisdiction waters vi opinion long praise environmental protection notably short analysis statutory text structure dissent hold waters include wetlands adjacent matter broadly defined tributaries matter broadly defined traditional navigable waters legal support conclusion dissent relies exclusively two sources ur unanimous opinion riverside bayview post congress deliberate acquiescence corps regulations post demonstrably inadequate support apparently limitless scope dissent permit corps give act dissent assertion riverside bayview squarely controls cases post wholly implausible first riverside bayview possibly support dissent acceptance corps inclusion dry beds tributaries post definition tributaries issue case riverside bayview addressed act inclusion wetlands abutting waters said nothing tributaries act might also cover riverside bayview likewise provides support dissent complacent acceptance corps definition adjacent noted extended beyond reason include inter alia floodplain covered waters see supra dissent notes riverside bayview quoted without comment corps description adjacent wetlands form border reasonable proximity waters post citing quoting fed reg already discussed quotation provides support inclusion physically unconnected wetlands covered waters see supra dissent relies principally riverside bayview recognizing every adjacent wetland great importance environment adjoining bodies water wetlands nevertheless covered act post quoting course says nothing support dissent broad definition adjacent quite contrary quoted sentence uses adjacent adjoining interchangeably qualifies sentence holding wetland covered ecause actually abut ted navigable waterway emphasis added moreover assertion act may interpreted include even adjoining wetlands lacking importance aquatic environment confirms scope ambiguity waters determined wetland physical connection covered waters ecological relationship thereto dissent reasons riverside bayview held waters include adjacent wetlands must defer corps interpretation ambiguous word adjacent post mere legerdemain phrase adjacent wetlands part statutory definition corps authorized interpret refers waters expounding term adjacent used riverside bayview explaining prior use word interpret definitional phrase waters however ambiguous term may abstract explained earlier adjacent used riverside bayview ambiguous physically abutting merely nearby see supra dissent distinguish swancc ground nothing say wetlands post concerned isolated ponds rather isolated wetlands ultimate distinction without difference isolated permanent seasonal ponds varying size depth might least described waters right constitute waters fortiori isolated swampy lands constitute waters see also author today dissent written believe actually navigable waters lie heart congress commerce power nonnavigable waters lie closer margin wetlands marginally marginal category potentially covered statute stevens dissenting ground dissent offers distinguish swancc unlike ponds swancc wetlands cases adjacent navigable bodies water tributaries adjacent may interpreted broadly clear roughly defined physical proximity make difference without actual abutment raises ambiguity undoubtedly poor proxy ecological significance fact though dissent careful restrict discussion wetlands adjacent tributaries reasons including wetlands strictly ecological wetlands included serve important water quality roles post play important roles watershed post reasoning swiftly overwhelm swancc altogether ponds issue swancc less wetlands cases offer spawning rearing resting sites aquatic land species valuable storage areas storm flood waters post dissent exclusive focus ecological factors combined total deference corps ecological judgments permit corps regulate entire country waters absent plausible ground case law sweeping position dissent relies heavily congress deliberate acquiescence corps regulations post noting found acquiescence significant riverside bayview even acknowledged swancc done post swancc acknowledged riverside bayview relied congressional acquiescence criticize reliance reasserted uncertain terms skepticism towards reading tea leaves congressional inaction although recognized congressional acquiescence administrative interpretations statute situations done extreme care failed legislative proposals particularly dangerous ground rest interpretation prior statute relationship actions inactions congress intent congress passing also considerably attenuated subsequent history less illuminating contemporaneous evidence respondents face difficult task overcoming plain text import citations internal quotation marks omitted congress takes governmental action except legislation dissent refers congress deliberate acquiescence appropriately called congress failure express opinion idea whether members failure act attributable belief corps regulations correct rather belief courts eliminate excesses indeed simply unwillingness confront environmental lobby sure sometimes relied congressional acquiescence evidence congress considered rejected precise issue presented bob jones univ emphasis added however bsent overwhelming evidence acquiescence loath replace plain text original understanding statute amended agency interpretation swancc supra emphasis added dissent falls far short producing overwhelming evidence congress considered failed act upon precise issue today namely constitutes adjacent wetland covered act citing riverside bayview account debates dissent claims nothing congress conducted extensive debates corps regulatory jurisdiction wetlands rejected efforts limit jurisdiction post fact even vague description goes far recounted riverside bayview debates concerned proposal limi corps authority waters navigable fact adjacent wetlands defined wetlands periodically inundated contiguous navigable waters rejecting proposal congress merely failed enact limitation waters include waters interpretation affirmatively reject today see supra definition wetlands based periodi inundat ion appears almost nowhere briefs opinions plausible interpretation legislative inaction construe implied endorsement every jot tittle corps regulations fact riverside bayview relied legislative inaction least evidence reasonableness agency inclusion adjacent wetlands act observation even restricted reach corps jurisdiction excised adjacent wetlands ibid conclusions perfectly consistent interpretation neither illuminates disputed question constitutes adjacent wetland curious appeal entrenched executive error dissent contends appropriateness corps implementation clean water act addressed congress corps rather judiciary post see also post surely novel principle administrative law sort adverse possession insulates disregard statutory text judicial review deservedly precedent jurisprudence invoke principle swancc invalidated one aspect corps implementation dissent contends ecause ambiguity phrase interpreting broadly cover ditches streams advances purpose act corps approach command deference post two defects single sentence aters respects ambiguous scope ambiguity however conceivably extend whether storm drains dry ditches waters hence support corps interpretation advancing purpose act often criticized last resort extravagant interpretation noting law pursues purpose costs textual limitations upon law scope less part purpose substantive authorizations see director office workers compensation programs newport news shipbuilding dry dock finally agree dissent statement post hether benefits particular conservation measures outweigh costs classic question public policy answered appointed judges neither however answered appointed officers corps engineers contradiction congressional direction dissent opinion appeals reasonable interpretation enacted text great environmental benefits patently unreasonable interpretation achieve begun discussion mentioning sure high costs imposed interpretation way basis decision rests plainly simply upon limited meaning borne phrase waters vii justice kennedy opinion concludes reading act inconsistent text structure purpose post opinion however leaves act text structure virtually unaddressed rests case upon interpretation phrase significant nexus appears one opinions begin justice kennedy reading significant nexus bears easily recognizable relation either case used swancc earlier case case purported interpreting riverside bayview establish significant nexus justice kennedy require corps establish basis wetlands adjacent nonnavigable tributaries significantly affect chemical physical biological integrity covered waters readily understood post standard certainly come riverside bayview explicitly rejected determinations ecological significance jurisdictional question whether wetland covered holding instead physically connected wetlands covered true enough one reason accepting criterion likelihood physically connected wetland ecological effect upon adjacent waters determination ecological effect test likewise test derived swancc characterization riverside bayview emphasized wetlands possessed significant nexus earlier case actually abutted navigable waterway specifically rejected argument physically unconnected ponds included based ecological connection covered waters fact justice kennedy acknowledges neither riverside bayview swancc required wetlands abutting waters ecological determination proposes wetlands neighbor nonnavigable tributaries see post thus justice kennedy misreads swancc significant nexus statement mischaracterizing riverside bayview adopt test ecological significance transfers standard context riverside bayview expressly declined address namely wetlands nearby tributaries time conceding standard apply context riverside bayview address wetlands abutting navigable waterways truly turtles way misreading prior decisions principal problem principal problem reading utter isolation text act one think reading justice kennedy exegesis crucial provision text cwa jurisdictional requirement significant nexus wetlands navigable waters fact however phrase appears nowhere act taken swancc cryptic characterization holding riverside bayview interpretation phrase consistent opinions compatible act establish jurisdictional criterion waters wetlands waters bear significant nexus physical connection makes practical matter indistinguishable waters nexus conceivably cause waters justice kennedy test either alone combination similarly situated lands region significantly affect chemical physical biological integrity covered waters readily understood post emphasis added possible linguistic usage accept whatever alone combination affects waters waters ignoring text statute assuming phrase swancc significant nexus properly interpreted isolation text justice kennedy reach conclusion arrived instead limiting meaning reference text applying purports reference calls purpose statute purpose clean waters therefore anything might significantly affect purity waters bears significant nexus waters thus never says text statute demands mean waters familiar tactic substituting purpose statute text freeing write different statute achieves purpose begin discussed earlier clean water purpose statute preservation primary state responsibility ordinary decisions justice kennedy test takes account purpose fundamentally however test simply rewrites statute using purpose gimmick significant nexus easy matter congress give corps jurisdiction wetlands matter dry lands significantly affect chemical physical biological integrity waters instead explicitly limited jurisdiction waters justice kennedy disposition disallow corps excesses respect moderate flouting statutory command justice another respect however extreme least justice stevens blame implausible reading statute upon corps error consists giving agency deference reason permits justice kennedy however devised new statute purports grudging acceptance agency expansion powers rather reasonable interpretation law far unless whatever affects waters waters viii sixth circuit applied wrong standard determine wetlands covered waters paucity record cases lower courts determine first instance whether ditches drains near wetland waters ordinary sense containing relatively permanent flow whether wetlands question adjacent waters sense possessing continuous surface connection creates problem addressed riverside bayview vacate judgments sixth circuit remand cases proceedings ordered john rapanos et et petitioners june carabell et petitioners army corps engineers et al writs certiorari appeals sixth circuit june chief justice roberts concurring five years ago rejected position army corps engineers scope authority regulate wetlands clean water act stat amended et seq solid waste agency northern cook cty army corps engineers swancc corps taken view authority essentially limitless explained boundless view inconsistent limiting terms congress used act response swancc decision corps environmental protection agency epa initiated rulemaking consider issues associated scope waters subject clean water act cwa light decision swancc fed reg goal agencies develop proposed regulations public interest clarifying waters subject cwa jurisdiction affording full protection waters appropriate focus federal state resources consistent cwa ibid agencies delegated rulemaking authority statute clean water act afforded generous leeway courts interpreting statute entrusted administer see chevron natural resources defense council given broad somewhat ambiguous nonetheless clearly limiting terms congress employed clean water act corps epa enjoyed plenty room operate developing notion outer bound reach authority proposed rulemaking went nowhere rather refining view authority light decision swancc providing guidance meriting deference generous standards corps chose adhere essentially boundless view scope power upshot today another defeat agency unfortunate opinion commands majority precisely read congress limits reach clean water act lower courts regulated entities feel way basis situation certainly unprecedented see grutter bollinger discussing marks unusual instance perhaps readily situation avoided john rapanos et et petitioners june carabell et petitioners army corps engineers et al writs certiorari appeals sixth circuit june justice kennedy concurring judgment consolidated cases require decide whether term navigable waters clean water act extends wetlands contain adjacent waters navigable fact solid waste agency northern cook cty army corps engineers swancc held circumstances presented constitute act water wetland must possess significant nexus waters navigable fact reasonably made instant cases neither plurality opinion dissent justice stevens chooses apply test though appeals recognized test applicability consider factors necessary determine whether lands question requisite nexus view cases remanded appeals proper consideration nexus requirement although plurality opinion dissent justice stevens hereinafter dissent discuss background cases detail discussion relevant statutes regulations facts may clarify analysis suggested objective clean water act act restore maintain chemical physical biological integrity nation waters end statute among things prohibits discharge pollutant person except provided act relevant term discharge pollutant means addition pollutant navigable waters point source term pollutant defined dredged spoil solid waste incinerator residue sewage garbage sewage sludge munitions chemical wastes biological materials radioactive materials heat wrecked discarded equipment rock sand cellar dirt industrial municipal agricultural waste discharged water secretary army acting chief engineers army corps engineers may issue permits discharge dredged fill material navigable waters specified disposal sites see categorically exempting certain forms discharge dredged fill material regulation pursuant qualifying programs may assume certain aspects corps permitting responsibility apart dredged fill material pollutant discharges require permit environmental protection agency epa also oversees corps qualifying permitting decisions see discharge pollutants without appropriate permit may result civil criminal liability see statutory term interpreted applied two instant cases term navigable waters outcome turns whether phrase reasonably describes certain michigan wetlands corps seeks regulate act term waters means waters including territorial seas regulation corps construed term waters include waters susceptible use interstate commerce traditional understanding term navigable waters see appalachian elec power daniel ball wall also tributaries waters particular relevance wetlands adjacent waters tributaries cfr corps views tributaries within jurisdiction carry perceptible ordinary high water mark fed reg ordinary mark line shore established fluctuations water indicated physical characteristics clear natural line impressed bank shelving changes character soil destruction terrestrial vegetation presence litter debris appropriate means consider characteristics surrounding areas cfr contrary plurality description ante wetlands simply moist patches earth defined areas inundated saturated surface ground water frequency duration sufficient support normal circumstances support prevalence vegetation typically adapted life saturated soil conditions wetlands generally include swamps marshes bogs similar areas corps wetlands delineation manual including pages technical guidance corps officers interprets definition wetlands require prevalence plant species typically adapted saturated soil conditions determined accordance fish wildlife service national list plant species occur wetlands hydric soil meaning soil saturated flooded ponded sufficient time growing season become anaerobic lacking oxygen upper part wetland hydrology term generally requiring continuous inundation saturation surface least five percent growing season years see wetlands research program technical report edition pp http internet material visited june available clerk case file corps regulations wetlands adjacent tributaries thus covered act even separated waters dikes barriers natural river berms beach dunes like first consolidated case rapanos relates civil enforcement action initiated district eastern district michigan owners three land parcels near midland michigan first parcel known salzburg site consists roughly acres district applying corps definition wetlands found based expert testimony salzburg site included acres wetlands district found salzburg wetlands surface water connection tributaries kawkawlin river turn flows saginaw river ultimately lake huron app pet cert water site evidently spills hoppler drain located north property carries water hoppler creek thence kawkawlin river navigable state official testified observed carp spawning ditch north property indicating direct connection ditch saginaw bay lake huron second parcel known hines road site consists acres district found included acres wetlands found wetlands connection rose drain carries water tittabawassee river navigable waterway final parcel called pine river site consists acres district found acres wetlands surface water connection linked wetlands nearby pine river flows lake huron relevant times john rapanos owned salzburg site company controlled owned hines road site rapanos wife company controlled possibly connection another entity owned pine river site parties petitioners december rapanos hoping construct shopping center asked michigan department natural resources inspect salzburg site state official informed rapanos site likely included regulated wetlands rapanos proceed project wetlands delineated identified preserved permit obtained pursuing delineation option rapanos hired wetlands consultant survey property results evidently displeased rapanos informed site included acres wetlands rapanos allegedly threatened destroy consultant unless eradicated traces report rapanos ordered earthmoving landclearing work filled wetlands acres salzburg site without permit despite receiving orders state officials epa hines road pine river sites construction work conducted violation state federal compliance orders altered additional wetlands acres respectively federal government brought criminal charges rapanos suit issue however alleged civil violations clean water act rapanos petitioners specifically government claimed petitioners discharged fill jurisdictional wetlands failed respond requests information ignored administrative compliance orders see bench trial district made findings noted earlier basis upheld corps jurisdiction wetlands three parcels merits ruled government favor finding violations occurred three sites two sites however rejected corps claim jurisdiction holding government failed carry burden proving existence wetlands regulatory definition two parcels longer issue appeals sixth circuit affirmed granted certiorari consider corps jurisdiction wetlands salzburg hines road pine river sites second consolidated case carabell involves parcel shaped like right triangle consisting acres forested wetlands supp ed property located roughly one mile lake clair lake located michigan canada popular boating fishing produces percent sport fish caught great lakes see brief macomb county michigan amicus curiae corner property located northwest hypotenuse runs northeast southwest lies alongside berm separates property ditch least current conditions without deposit fill wetlands landowners propose berm ordinarily always blocks flow wetlands ditch cf app administrative hearing testimony consultant carabells indicating start seeing overflow ten year storm near northeast corner property ditch connects drain carries water continuously throughout year empties auvase creek creek turn empties lake clair southwest end ditch connects ditches empty auvase creek thence lake clair petitioners keith june carabell sought permit michigan department environmental quality mdeq assumed permitting functions corps pursuant petitioners hoped fill wetlands construct condominium units although mdeq denied permit state administrative law judge directed agency approve alternative plan proposed carabells involved construction units proposal called filling acres property creating retention ponds acres epa objected permit jurisdiction case transferred corps see corps district office concluded carabells property provides water storage functions destroyed result increased risk erosion degradation water quality drain auvase creek lake st clair district office denied permit corps upheld denial administrative appeal carabells challenging corps jurisdiction merits permit denial sought judicial review pursuant administrative procedure act district eastern district michigan granted summary judgment corps supp appeals sixth circuit affirmed granted certiorari consider jurisdictional question ii twice construed term navigable waters clean water act riverside bayview homes upheld corps jurisdiction wetlands adjacent waterways property riverside bayview like wetlands carabell case located roughly one mile lake clair see riverside bayview homes decision review riverside bayview though case unlike carabell lands issue formed part wetland directly abutted creek chevron natural resources defense council held corps ecological judgment relationship waters adjacent wetlands provides adequate basis legal judgment adjacent wetlands may defined waters act reserved however question corps authority regulate wetlands adjacent open waters see swancc considered validity corps jurisdiction ponds mudflats isolated sense unconnected waters covered act property issue abandoned sand gravel pit mining operation remnant excavation trenches evolv ed scattering permanent seasonal ponds asserting jurisdiction pursuant regulation called migratory bird rule corps argued isolated ponds waters thus navigable waters act used habitat migratory birds rejected theory significant nexus wetlands waters held informed reading act riverside bayview homes nexus lacking respect isolated ponds held plain text statute permit corps action riverside bayview swancc establish framework inquiry cases corps regulations applied wetlands carabell three wetlands parcels rapanos constitute reasonable interpretation navigable waters riverside bayview invalid construction swancc taken together cases establish instances exemplified riverside bayview connection nonnavigable water wetland navigable water may close potentially close corps may deem water wetland navigable water act instances exemplified swancc may little connection absent significant nexus jurisdiction act lacking neither plurality dissent addresses nexus requirement separate opinion respectful view necessary plurality opinion begins correct premise plurality points riverside bayview holds enacting clean water act congress intended regulate least waters navigable traditional sense ante riverside bayview describing act program water pollution regulation compelled statutory text text explicit extending coverage act nonnavigable waters provision allowing assume regulatory functions corps option michigan exercised act limits issuing permits discharge dredged fill material navigable waters waters presently used susceptible use natural condition reasonable improvement means transport interstate foreign commerce shoreward ordinary high water mark including waters subject ebb flow tide shoreward ordinary high water mark mean higher high water mark west coast including wetlands adjacent thereto within jurisdiction clean water act navigable waters apart waters presently used susceptible use interstate commerce clause begins long parenthetical statement overtake delegation authority provision makes outset congress follows must intended broader meaning navigable waters mention wetlands clause moreover makes plain least wetlands fall within scope term navigable waters see riverside bayview supra reasonable beginning plurality proceeds impose two limitations act limitations submitted without support language purposes act cases interpreting first dictionary defines waters mean water found streams bodies forming geographical features oceans rivers lakes flowing moving masses waves floods making streams bodies ante quoting webster new international dictionary ed hereinafter webster second plurality conclude phrase navigable waters permits corps epa jurisdiction relatively permanent standing flowing bodies water ante category plurality view includes seasonal rivers rivers carry water continuously except dry months intermittent ephemeral streams ante second plurality asserts wetlands fall within act bear continuous surface connection bodies right waters satisfy plurality requirement permanent standing water continuous flow ante plurality first requirement permanent standing water continuous flow least period months ante makes little practical sense statute concerned downstream water quality merest trickle continuous count water subject federal regulation torrents thundering irregular intervals otherwise dry channels though plurality seems presume irregular flows insignificant concern statute focused waters may always true areas western parts nation provide examples los angeles river instance ordinarily carries trickle water often looks like dry roadway river see gumprecht los angeles river life death possible rebirth martinez city angels signature river tapped rebirth chicago tribune apr section yet periodically releases powerful destructive encased concrete steel length miles see gumprecht supra though particular waterway might satisfy plurality test illustrative watercourses become rain waters flow see county los angeles dept public works water resources division hydrologic report runoff daily discharge bouquet canyon creek urbandale avenue bouquet creek near saugus ca http indicating creek carried flow much year carried cubic feet per second sure congress draw line exclude irregular waterways nothing statute suggests done quite opposite full reading dictionary definition precludes plurality emphasis permanence term waters may mean flood inundation webster second events impermanent definition thus although course act use adjective navigable indicates focus waterways rather floods congress use waters instead water ante necessarily carry connotation relatively permanent standing flowing bodies water ante contrary plurality suggestion ante indication dictionary flood inundation definition limited poetry event even granting plurality preferred definition waters means water found streams bodies forming geographical features oceans rivers lakes ante quoting webster second dissent correct observe intermittent flow constitute stream sense current course water fluid flowing earth ante quoting webster second flowing see post stevens dissenting also noting use phrase harrisonville dickey clay mfg follows corps reasonably interpret act cover paths impermanent streams apart dictionary plurality invokes riverside bayview support interpretation term waters confined reliance misplaced sure compared wetlands rivers streams hydrographic features conventionally identifiable quite stretch claim however mention hydrographic features echoe dictionary reference features oceans rivers lakes ante quoting webster second fact riverside bayview opinion cite dictionary definition plurality relies phrase hydrographic features well refer intermittent streams carrying substantial flow navigable waters see webster second defining hydrography description study seas lakes rivers waters specif ically measurement flow investigation behavior streams esp ecially reference control utilization waters also incorrect plurality attempt draw support statutory definition point source discernible confined discrete conveyance including limited pipe ditch channel tunnel conduit well discrete fissure container rolling stock concentrated animal feeding operation vessel floating craft pollutants may discharged definition central act regulatory structure term discharge pollutant defined relevant part mean addition pollutant navigable waters point source interpreting definition plurality presumes first examples describe watercourses intermittent waters typically flow second point sources navigable waters separate distinct categories ante plurality concludes sort negative inference navigable waters may intermittent conclusion unsound nothing definition requires intermittent flow polluted water flow night day pipe channel conduit yet still qualify point source contrary conclusion likely exclude among things effluent streams sewage treatment plants result even statute read require continuity flow navigable waters certain conceivably constitute point source water rate dissent observes fact point sources may carry continuous flow undermines plurality conclusion covered waters act may discontinuous see post plurality second limitation exclusion wetlands lacking continuous surface connection jurisdictional waters also unpersuasive begin plurality wrong suggest wetlands indistinguishable waters bear surface connection ante even precise boundary may imprecise bog swamp different river question circumstances permit bog swamp nonnavigable wetland constitute navigable water act nothing else indicates sometimes possible see supra riverside bayview addressed question answer inconsistent plurality theory upholding corps authority regulate wetlands adjacent bodies water corps jurisdiction deemed irrelevant whether moisture creating wetlands find source adjacent bodies water observed adjacency serve valid basis regulation even wetlands significantly intertwined ecosystem adjacent waterways reasonable explained corps conclude majority cases adjacent wetlands significant effects water quality aquatic ecosystem definition stand ibid riverside bayview note true difficulty defining water ends land begins cited problem one reason deferring corps view adjacent wetlands constitute waters given however recognition riverside bayview overinclusive definition permissible even reaches wetlands holding moisture disconnected adjacent riverside bayview observations difficulty defining water edge taken establish clear boundary evident wetlands beyond boundary fall outside corps jurisdiction reason riverside bayview also read rejecting proposition accepted appeals case wetlands covered act must contain moisture originating neighboring waterways see since appeals accepted theory naturally addressed yet view decision reasoning limited issue interpretation plurality urges ante overlook opinion broader focus wetlands significant effects water quality aquatic ecosystem event even reading riverside bayview correct offer support plurality proposed requirement continuous surface connection ante riverside bayview rejected proposition origination flooding necessary jurisdiction wetlands suggest origin support jurisdiction indeed presumed opposite see noting corps view valid even wetlands result flooding permeation emphasis added needless say continuous connection necessary moisture wetlands result flooding connection might well exist floods swancc likewise support plurality requirement swancc holding nonnavigable isolated intrastate waters navigable waters explicit implicit overruling riverside bayview approval adjacency factor determining corps jurisdiction rejecting corps claimed authority isolated ponds swancc distinguished adjacent nonnavigable waters wetlands addressed riverside bayview riverside bayview recognizes corps adjacency standard reasonable applications indeed corps view draws support structure act plurality requirement discussed act prohibition discharge pollutants navigable waters covers discharge toxic materials sewage chemical waste biological material radioactive material discharge dredged spoil rock sand cellar dirt like substances defined pollutants whose discharge navigable waters violates act one reason parallel treatment may discharge fill material impair downstream water quality plurality argues otherwise asserting dredged fill material normally wash downstream ante dissent points proposition seems questionable empirical matter see post seems plausible new loose fill anchored grass roots vegetation travel downstream waterways adjacent wetland least factual possibility corps experts better assess plurality silt whether natural human sources major factor aquatic environments may clog waterways alter ecosystems limit useful life dams see fountain unloved unbuilt times june section depalma dam demolished save endangered species times apr section macdougall damage irreversible los angeles times june pt even granting however plurality assumption fill material stay put congress parallel treatment fill material toxic pollution may serve another purpose noted riverside bayview corps concluded wetlands may serve filter purify water draining adjacent bodies water cfr vii slow flow surface runoff lakes rivers streams thus prevent flooding erosion see iv wetlands perform filtering functions filling may increase downstream pollution much discharge toxic pollutants dirty water longer stored filtered also act filling draining may cause release nutrients toxins pathogens trapped neutralized perhaps amenable filtering detoxification wetlands see congress office technology assessment wetlands use regulation pp mar http hereinafter ota many cases moreover filling wetlands separated another water berm mean flood water impurities runoff stored contained wetlands instead flow major waterways concerns mind corps definition adjacency reasonable one may absence interchange waters prior dredge fill activity makes protection wetlands critical statutory scheme sum plurality opinion inconsistent act text structure purpose fallback plurality suggests avoidance canons compel reading even text unclear ante swancc one reason rejecting corps assertion jurisdiction isolated ponds issue observed application corps regulations raise significant questions commerce clause authority encroach traditional state regulation swancc observed plurality points ante act policy congress recognize preserve protect primary responsibilities rights prevent reduce eliminate pollution plan development use land water resources swancc cited provision evidence clear statement supporting jurisdiction applications raising constitutional federalism difficulties lacking concerns addressed swancc support plurality interpretation act swancc interpreting act require significant nexus navigable waters avoided applications involving waters without significant nexus appeared likely category raise constitutional difficulties federalism concerns contrast plurality interpretation fit avoidance concerns raises one hand connection lacking plurality forecloses jurisdiction wetlands abut waters even though navigable waters traditionally subject federal authority hand saying act covers wetlands however remote possessing connection continuously flowing stream however small plurality reading permit applications statute far traditional federal authority waters deems beyond statute reach even assuming federal regulation remote wetlands nonnavigable waterways raise difficult comerce clause issue notwithstanding waters aggregate effects national water quality cf wickard filburn see also infra plurality reading responsive concern responsibilities rights noteworthy plus district columbia filed amici brief litigation asserting clean water act important water policies see brief new york et al amici note among things act protects downstream pollution regulate ibid bears mention also plurality overall tone approach characterization acres wetlands destruction backfilling wet fields ante rejection corps authority drainage ditches dry arroyos without regard much water periodically carry ante suggestion seemingly contrary congress judgment discharge fill material inconsequential adjacent waterways ante seems unduly dismissive interests asserted cases important public interests served clean water act general protection wetlands particular give one example amici noted runoff mississippi river created hypoxic dead zone gulf mexico times approaches size massachusetts new jersey brief association state wetland managers et al brief environmental law institute scientific evidence indicates wetlands play critical role controlling filtering runoff see ota tiner search swampland wetland sourcebook field guide ed whitmire hamilton rapid removal nitrate sulfate freshwater wetland sediments env quality true plurality indicates environmental concerns provide reason disregard limits statutory text ante view plurality opinion correct reading text limits plurality impose moreover give insufficient deference congress purposes enacting clean water act authority executive implement statutory mandate finally go without saying plurality presents interpretation act permissible reading plain text ante corps lack discretion plurality theory adopt contrary regulations chief justice suggests corps epa issued new regulations swancc enjoyed plenty room operate developing notion outer bound reach authority thus avoided litigation issues address today ante necessarily true opinion chief justice joined new rulemaking averted disagreement corps anticipated unprecedented reading act plurality advances plurality reads nonexistent requirements act dissent reads central requirement namely requirement word navigable navigable waters given importance although held statute language invokes congress traditional authority waters navigable fact susceptible made swancc citing appalachian power dissent permit federal regulation whenever wetlands lie alongside ditch drain however remote insubstantial eventually may flow traditional navigable waters deference owed corps interpretation statute extend far congress choice words creates difficulties act contemplates regulation certain navigable waters fact navigable supra nevertheless word navigable act must given effect see swancc supra thus swancc rejected corps assertion jurisdiction isolated ponds mudflats bearing evident connection waters riverside bayview indicated term used act limited import relied upholding jurisdiction corps judgment wetlands adjacent lakes rivers streams bodies water may function integral parts aquatic environment even moisture creating wetlands find source adjacent bodies water implication course wetlands status integral parts aquatic environment significant nexus navigable waters established corps jurisdiction waters consistent swancc riverside bayview need give term navigable meaning corps jurisdiction wetlands depends upon existence significant nexus wetlands question navigable waters traditional sense required nexus must assessed terms statute goals purposes congress enacted law restore maintain chemical physical biological integrity nation waters pursued objective restricting dumping filling navigable waters respect wetlands rationale clean water act regulation corps recognized wetlands perform critical functions related integrity waters functions pollutant trapping flood control runoff storage cfr accordingly wetlands possess requisite nexus thus come within statutory phrase navigable waters wetlands either alone combination similarly situated lands region significantly affect chemical physical biological integrity covered waters readily understood navigable contrast wetlands effects water quality speculative insubstantial fall outside zone fairly encompassed statutory term navigable waters although dissent acknowledges wetlands ecological functions covered waters basis corps regulation post concludes ambiguity phrase navigable waters allows corps construe statute reaching wetlands construed act reach wetlands adjacent waters riverside bayview see post though seems incorrect corps theory jurisdiction consolidated cases adjacency tributaries however remote insubstantial raises concerns go beyond holding riverside bayview corps assertion jurisdiction rest case applied wetlands adjacent waters corps conclusive standard jurisdiction rests upon reasonable inference ecologic interconnection assertion jurisdiction wetlands sustainable act showing adjacency alone holding riverside bayview furthermore although riverside bayview reserved question corps authority wetlands adjacent bodies open water event addressed factual situation wetlands adjacent waters may well case riverside bayview reasoning supporting jurisdiction without inquiry beyond adjacency apply equally wetlands adjacent certain major tributaries regulations adjudication corps may choose identify categories tributaries due volume flow either annually average proximity navigable waters relevant considerations significant enough wetlands adjacent likely majority cases perform important functions aquatic system incorporating navigable waters corps existing standard tributaries however provides assurance noted earlier corps deems water tributary feeds traditional navigable water tributary thereof possesses ordinary mark defined line shore established fluctuations water indicated certain physical characteristics see supra standard presumably provides rough measure volume regularity flow assuming subject reasonably consistent application see general accounting office report chairman subcommittee energy policy natural resources regulating affairs committee reform house representatives waters wetlands corps engineers needs evaluate district office practices determining jurisdiction pp http noting variation results among corps district offices may well provide reasonable measure whether specific minor tributaries bear sufficient nexus regulated waters constitute navigable waters act yet breadth standard seems leave wide room regulation drains ditches streams remote water carrying minor towards precludes adoption determinative measure whether adjacent wetlands likely play important role integrity aquatic system comprising navigable waters traditionally understood indeed many cases wetlands adjacent tributaries covered standard might appear little related waters isolated ponds held fall beyond act scope swancc cf leibowitz nadeau isolated wetlands future directions wetlands noting generally matter degree corps seeks regulate wetlands adjacent waters may rely adjacency establish jurisdiction absent specific regulations however corps must establish significant nexus basis seeks regulate wetlands based adjacency nonnavigable tributaries given potential overbreadth corps regulations showing necessary avoid unreasonable applications statute adequate nexus established particular wetland may permissible matter administrative convenience necessity presume covered status comparable wetlands region issue however neither raised facts addressed agency regulation accommodates nexus requirement outlined interpretation act raise federalism commerce clause concerns sufficient support presumption adoption sure significant nexus requirement may align perfectly traditional extent federal authority yet cases regulation wetlands adjacent tributaries possess significant nexus navigable waters raise serious constitutional federalism difficulty cf pierce county guillen upholding federal legislation aimed improving safety channels commerce oklahoma ex rel phillips guy atkinson ust control parts river may essential desirable interests navigable portions may key flood control navigable stream found whole part flood control tributaries exercise granted power congress regulate interstate commerce may aided appropriate needful control activities agencies though intrastate affect commerce explained earlier moreover exemplified swancc test prevents problematic applications statute see supra slip hen general regulatory statute bears substantial relation commerce de minimis character individual instances arising statute consequence internal quotation marks omitted iii consolidated cases record contains evidence suggesting possible existence significant nexus according principles outlined thus end result cases many others considered corps may suggested dissent namely corps assertion jurisdiction valid given however neither agency reviewing courts properly considered issue remand appropriate view application controlling legal standard rapanos dissent points rapanos expert district found eminently qualified highly credible app pet cert testified wetlands providing habitat sediment trapping nutrient recycling flood peak diminution reduction flow water augmentation tr apr although expert studied upstream drainage sites thus assert wetlands performing important functions observe situation flood water attenuation water held site wetland add flood peak token additional water flowing rivers drier periods thus increasing low water flow token sites extent slow flow water site also accumulate sediment thus trap sediment hold nutrients use wetlands systems later season well addition assessing hydrology prong wetlands test see supra district made extensive findings regarding water tables drainage parcels issue applying corps jurisdictional regulations district found wetlands bore surface water connections tributaries waters much evidence permit establishment significant nexus waters particularly supplemented evidence significance tributaries wetlands connected appeals however though recognizing swancc nexus required jurisdiction held significant nexus satisfied presence hydrologic connection absent measure significance connection downstream water quality standard uncertain analysis described earlier supra mere hydrologic connection suffice cases connection may insubstantial hydrologic linkage establish required nexus navigable waters traditionally understood view case remanded district may reconsider evidence light appropriate standard see swint appellate discerns district failed make finding erroneous view law usual rule remand proceedings permit trial make missing findings carabell carabell record also contains evidence bearing jurisdictional inquiry corps noted deciding administrative appeal esides effects wildlife habitat water quality district office also noted project major detrimental effect wetlands flood retention recreation conservation overall ecology app similarly district office permit evaluation corps officers observed proposed work impact area retains rainfall forest nutrients replace new source area runoff pollutants pollutants area may include lawn fertilizers herbicides pesticides road salt oil grease pollutants runoff directly waterway overall operation use proposed activity major long term negative impact water quality cumulative impacts numerous projects major negative remaining wetlands area developed corps evaluation noted eliminat ing potential ability wetland act sediment catch basin proposed project contribute increased runoff accretion along drain downstream auvase creek observed increased runoff site likely cause downstream areas see increase possible flooding magnitude frequency conditional language assessments potential ability possible flooding suggest undue degree speculation reviewing must identify substantial evidence supporting corps claims see nevertheless record show factors relevant jurisdictional inquiry already noted considered rapanos though record gives little indication quantity regularity flow adjacent tributaries consideration may important assessing nexus also rapanos legal standard applied facts imprecise appeals considering carabell case rapanos decision framed inquiry terms whether hydrologic connection required establish significant nexus held much holding correct given role wetlands play pollutant filtering flood control runoff storage may well absence hydrologic connection sense interchange waters shows wetlands significance aquatic system administrative decision review however corps based jurisdiction solely wetlands adjacency ditch opposite berm property edge explained earlier mere adjacency tributary sort insufficient similar ditch well located many miles water carry insubstantial flow towards specific inquiry based significant nexus standard therefore necessary thus remand required permit application appropriate legal standard see ins orlando ventura per curiam generally speaking appeals remand case agency decision matter statutes place primarily agency hands consolidated cases vacate judgments appeals remand consideration whether specific wetlands issue possess significant nexus navigable waters john rapanos et et petitioners june carabell et petitioners army corps engineers et al writs certiorari appeals sixth circuit june justice stevens justice souter justice ginsburg justice breyer join dissenting congress decided restore maintain chemical physical biological integrity nation waters passing call clean water act stat amended et seq costs achieving herculean goal ending water pollution see persuaded president nixon veto enactment houses congress voted override veto overwhelming margins achieve goal congress prohibited discharge pollutant defined include addition pollutant navigable waters point source without permit issued army corps engineers army corps corps environmental protection agency epa congress defined navigable waters mean waters narrow question presented whether wetlands adjacent tributaries traditionally navigable waters waters subject jurisdiction army corps question whether manmade berm separating wetland adjacent tributary makes difference broader question whether regulations protected quality waters decades implicitly approved congress repeatedly enforced case case must revised light creative criticisms voiced plurality justice kennedy today rejecting years practice army corps plurality disregards nature congressional delegation agency technical complex character issues stake justice kennedy similarly fails defer sufficiently corps though approach far faithful precedents principles statutory interpretation plurality view proper analysis straightforward army corps determined wetlands adjacent tributaries traditionally navigable waters preserve quality nation waters among things providing habitat aquatic animals keeping excessive sediment toxic pollutants adjacent waters reducing downstream flooding absorbing water times high flow corps resulting decision treat wetlands encompassed within term waters quintessential example executive reasonable interpretation statutory provision see chevron natural resources defense council unanimous decision riverside bayview homes faithful duty respect work product legislative executive branches government today judicial amendment clean water act three sites issue petitioners filled large areas wetlands without permits despite full notice corps regulatory requirements plurality gives short shrift facts case well shall discuss length facts related salzburg site illustrative john rapanos asked michigan department natural resources mdnr inspect site order discuss feasibility building shopping center app pet cert mdnr inspector informed rapanos land probably included wetlands waters sent application permit rapanos hired wetland consultant frederick goff goff concluded land fact contain many acres wetlands rapanos threatened goff destroy wetland report refused pay goff unless complied ibid meantime without applying permit rapanos hired construction companies worth work clearing land filling low spots draining subsurface water rapanos prevented mdnr inspectors visiting site ignored mdnr letter refused obey administrative compliance order issued epa matter referred department justice civil case us district found rapanos unlawfully filled acres wetlands rapanos wife engaged similar behavior hines road pine river sites without applying permits hired construction companies perform extensive clearing filling activities continued activities even receiving epa administrative compliance orders directing cease work immediately ultimately spent hines road site filling existing acres wetlands pine river site spent filled acres wetlands prior destruction wetlands three sites surface connections tributaries traditionally navigable waters salzburg wetlands connected drain flows creek flows navigable kawkawlin river hines road wetlands connected drain flows navigable tittabawassee river pine river wetlands connected pine river flows lake huron trial government put wetland expert daniel willard trial found eminently qualified highly credible willard testified wetlands three sites provided ecological functions terms habitat sediment trapping nutrient recycling flood peak diminution tr apr explained enerally sites situation flood water attenuation water held site wetland add flood peak token additional water flowing rivers drier periods thus increasing low water flow token sites extent slow flow water site also accumulate sediment thus trap sediment hold nutrients use wetland systems later season well district found wetlands three sites covered clean water act rapanoses violated act destroying without permits sixth circuit unanimously affirmed facts less dramatic petitioners case tract land acres wetlands located macomb county mile lake clair wetlands border ditch flows drain flows creek flows lake clair manmade berm separates wetlands ditch thus water rarely ever passes wetlands ditch vice versa petitioners applied permit fill wetlands cubic yards material intended build condominium development site inspecting site considering comments among others water quality unit macomb county prosecutor office urged corps deny permit loss high quality wetland area unacceptable adverse effect wildlife water quality conservation wetlands resources app corps denied permit summarized letter sent petitioners reasons denial included parcel primarily forested wetland provides valuable seasonal habitat aquatic organisms year round habitat terrestrial organisms additionally site provides water storage functions destroyed result increased risk erosion degradation water quality drain auvase creek lake clair minimization impacts wetlands important conservation overall ecology region project development area forested wetland proposed project destroy resources manner soon recover impacts discharges extent impacts project area considered individually cumulatively unacceptable contrary public interest unanimous judgment district circuit judges corps jurisdiction wetland adjacent tributary traditionally navigable waters solicitor general defends judgments ii unanimous opinion riverside bayview squarely controls cases evaluated validity regulations issue today regulations interpret waters cover traditionally navigable waters tributaries waters wetlands adjacent traditionally navigable waters tributaries cfr although particular wetland issue riverside bayview abutted navigable creek framed question presented whether clean water act authorizes corps require landowners obtain permits corps discharging fill material wetlands adjacent navigable bodies water tributaries emphasis added held pursuant decision chevron review limited question whether reasonable light language policies legislative history act corps exercise jurisdiction wetlands adjacent regularly flooded rivers streams hydrographic features conventionally identifiable applying standard held corps decision interpret waters encompassing wetlands permissible recognized practical difficulties drawing clean lines land water deferred corps judgment treating adjacent wetlands waters advance congressional concern protection water quality aquatic ecosystems contrary plurality revisionist reading today ante riverside bayview nowhere implied approval adjacent wetlands contingent upon understanding adjacent means continuous surface connection wetland neighboring creek ante instead acknowledged corps defined adjacent including wetlands form border reasonable proximity found corps reasonably concluded adjacent wetlands part waters quoting fed reg indeed explicitly acknowledged corps jurisdictional determination reasonable even though every adjacent wetland great importance environment adjoining bodies water reasonable corps conclude majority cases adjacent wetlands significant effects water quality ecosystem definition stand definition may include wetlands significantly intertwined ecosystem adjacent waterways little moment appears wetland covered corps definition fact lacking importance aquatic environment corps may always allow development wetland uses simply issuing permit closing emphasized scope corps asserted jurisdiction wetlands specifically brought congress attention congress rejected amendment narrowed jurisdiction even proponents amendment removed wetlands altogether definition waters disregarding importance riverside bayview plurality relies heavily subsequent opinion solid waste agency northern cook cty army corps engineers swancc stark contrast riverside bayview however swancc nothing say wetlands let alone wetlands adjacent traditionally navigable waters tributaries instead swancc dealt question specifically reserved riverside bayview see supra namely corps jurisdiction isolated waters part tributary system interstate waters navigable waters degradation destruction affect interstate commerce quoting cfr emphasis added see also citing cfr later regulatory equivalent issue swancc abandoned sand gravel pit provide habitat migratory birds contained pools nonnavigable isolated intrastate waters corps asserted jurisdiction gravel pit migratory bird rule treated isolated waters within jurisdiction migratory birds depended upon waters rejected jurisdictional basis since isolated pools unlike wetlands issue riverside bayview significant nexus traditionally navigable waters process distinguished riverside bayview reliance congress decision leave corps regulations alone amended act since chambers debate proposals narrow definition navigable waters centered largely issue wetlands rather corps jurisdiction truly isolated waters quoting unlike swancc like riverside bayview cases us today concern wetlands adjacent navigable bodies water tributaries specifically wetlands abut tributaries traditionally navigable waters recognized riverside bayview corps concluded wetlands play important roles maintaining quality adjacent waters see consequently waters downstream among things wetlands offer nesting spawning rearing resting sites aquatic land species serve valuable storage areas storm flood waters provide significant water purification functions cfr values hardly independent ecological considerations plurality ante instead integral chemical physical biological integrity nation waters given wetlands serve important water quality roles given ambiguity inherent phrase waters corps reasonably interpreted jurisdiction cover wetlands see conclusion confirmed congress deliberate acquiescence corps regulations chambers conducted extensive debates corps regulatory jurisdiction wetlands rejected efforts limit jurisdiction appropriated funds wetlands help development operation programs act quoting found facts significant riverside bayview see acknowledged swancc see noting eyond congress desire regulate wetlands adjacent waters respondents point us persuasive evidence congressional acquiescence emphasis added corps exercise jurisdiction reasonable even though every wetland adjacent traditionally navigable water tributary perform perhaps water quality functions generally associated wetlands riverside bayview made clear jurisdiction depend inquiry instead enough wetlands adjacent tributaries generally significant nexus watershed water quality particular wetland significantly intertwined ecosystem adjacent waterways corps may allow development simply issuing permit accordingly purposes corps jurisdiction significance wetlands serve flood control sediment sink functions may much trap pollutants supra wetland keeps excess water lake clair may trap sediment see supra seemingly alarmed costs involved plurality shies away riverside bayview recognition jurisdiction affair agree plurality assumption costs preserving wetlands unduly high true cost permits high must obtain costs amount small fraction billion spent year private public construction development activity sunding zilberman significant plurality exaggerated concern costs however fact omission discussion benefits regulations issue produced sheds revelatory light quality indeed impartiality importance wetlands water quality hard overstate see congress office technology assessment wetlands use regulation pp mar http hereinafter ota describing wetlands role floodpeak reduction shoreline protection ground water recharge trapping suspended sediment filtering toxic pollutants protection fish wildlife see also ante kennedy concurring judgment unsurprisingly corps approach overwhelming endorsement numerous amici curiae including county property located final analysis however concerns appropriateness corps implementation clean water act addressed congress corps rather judiciary whether benefits particular conservation measures outweigh costs classic question public policy answered appointed judges fact large investments required finance large developments merely means adversely affected corps permitting decisions persons ability communicate effectively representatives unless succeed convincing congress corps clean water less important today continue owe deference regulations satisfying evident breadth congressional concern protection water quality aquatic ecosystems justices recognized riverside bayview iii even setting aside plurality dramatic departure reasoning holding riverside bayview creative opinion utterly unpersuasive plurality imposes two novel conditions exercise corps jurisdiction muddy jurisdictional waters justice kennedy observes limitations without support language purposes act cases interpreting ante opinion concurring judgment impropriety crafting new conditions highlighted fact party amicus suggested either first ignoring importance preserving jurisdiction water beds periodically dry plurality imposes requirement tributaries relatively permanent presence water fall within corps jurisdiction ante plurality view corps regulate polluters dump dredge stream flows year round may able regulate polluters dump neighboring stream flows days year even dredge second stream effect downstream waters dredge one ante find arbitrary distinction compelled statute plurality cites dictionary proposition contain dictionary treats streams waters nothing say whether streams must contain water year round qualify streams ante citing webster new international dictionary ed hereinafter webster second defining stream course water fluid flowing plurality somehow deduces streams never intermittent ephemeral flowing part year ante nn common sense common usage demonstrate tent streams like perennial streams still see dept interior geological survey topographic map symbols http identifying symbols erennial stream ntermittent stream well erennial river ntermittent river true well passage act webster third new international dictionary hereinafter webster third linking intermittent stream indeed used term intermittent stream far back harrisonville dickey clay mfg needless say justice brandeis use term unanimous opinion dismissed merely useful oxymor ante plurality opinion plurality attempts bolster arbitrary jurisdictional line citing two tangential statutory provisions two inapplicable canons construction none comes close showing congress directly spoke whether waters requires relatively permanent presence water first provision relied plurality definition point source conceivable bearing whether permanent tributaries treated differently intermittent ones since pipe ditch es channel tunnel conduit well hold water permanently well second provision announces congressional policy recognize preserve protect primary responsibilities rights prevent pollution plan development consult epa statutory additions made congress considered declined alter corps interpretation broad regulatory jurisdiction may run programs modified specifically recognizes role part primary responsibility preventing water pollution even focusing act stood see international paper ouellette interpreting light additions broad exercise jurisdiction corps still left ample rights responsibilities see warren maine bd environmental protection slip power impose tougher water pollution standards required act prevent corps epa issuing permits mention nearly exclusive responsibility containing pollution nonpoint sources two canons construction relied plurality similarly fail overcome deference owed corps first plurality claims concerns intruding state power regulate land use compel conclusion phrase waters cover intermittent streams recognized however congress found discharge pollutants controlled source riverside bayview importantly plurality disregards fundamental significance clean water act rehnquist explained writing act merely another law rather viewed congress restructuring rewriting existing water pollution legislation milwaukee illinois congress intent enacting act clearly establish program water pollution regulation casual perusal legislative history demonstrates views comprehensive nature legislation practically universal see also stevens dissenting corps concluded must regulate pollutants time enter ditches streams ordinary marks whether perennial intermittent ephemeral order properly control water pollution fed reg ambiguity phrase waters interpreting broadly cover ditches streams advances purpose act corps approach command deference intermittent streams carry pollutants perennial streams regulation may prove important flood control purposes inclusion identifiable tributaries ultimately drain large bodies water within mantle federal protection surely wise plurality second statutory invention arbitrary first trivializing significance changing conditions wetlands environments plurality imposes separate requirement wetland continuous surface connection abutting waterway difficult determine ends begins ante intermittent physically remote hydrologic connection wetland waters enough ibid view wetlands border traditionally navigable waters tributaries perform essential function soaking overflow waters hurricane season thus reducing flooding downstream filled developers impunity long wetlands lack surface connection adjacent waterway rest year plurality begins reasonably enough recognizing corps may appropriately regulate wetlands waters ante recognition wise since statutory text clearly accepts standard title added includes adjacent wetlands description waters thus expressly stated term included adjacent wetlands riverside bayview may conclusively determine construction placed use term elsewhere act light fact various provisions act read pari materia least suggest strongly term used act necessarily exclude plurality goes however define meaning continuous surface connection water ante unclear plurality reached conclusion though plainly neglected consult dictionary even preferred webster second defines term ying near close contiguous neighboring bordering acknowledges bjects adjacent lie close necessarily actual contact webster second emphasis added see also webster third event proper question plurality define adjacent whether corps definition reasonable corps defines adjacent bordering contiguous neighboring specifies etlands separated waters dikes barriers natural river berms beach dunes like wetlands cfr definition plainly reasonable face terms purposes act wetlands physically separated waters may perform less valuable functions matter corps evaluate permitting decisions made clear riverside bayview impose plurality new requirement despite absence evidence wetland issue sort continuous surface connection required plurality today see supra see also ante kennedy concurring judgment observing plurality requirement inconsistent riverside bayview facts demonstrate wetland separated berm adjacent tributaries may still prove important downstream water quality moreover congress notice corps definition adjacent amended act added see fed reg finally implicitly recognizing approach endangers quality waters congress sought protect plurality suggests epa regulate pollutants actually enter waters ante express view merits plurality reasoning relies heavily respect lower judgments conspicuously lacking earlier opinion ante fail understand however plurality similarly apply logic dredged fill material epa authority pollutants dredged fill materials stems identical statutory language gives rise corps jurisdiction plurality claims practical difference asserting dredged fill material normally wash downstream ante material probably stay put true soluble pollutants existence words like alluvium silt language see webster third suggests least fill makes way downstream see also deaton pollutant fill material degrades water quality tributary potential move downstream degrade quality navigable waters moreover fill harm biological integrity downstream waters even largely stays put upstream act purpose protecting fish see warren slip seriously impaired sediment upstream waters fish spawn since excessive sediment smother invertebrates impair fish spawning ota see also erman hawthorne quantitative importance intermittent stream spawning rainbow trout transactions american fisheries society brief american rivers et al amici curiae observing anadromous salmon often spawn small intermittent streams iv generally agree parts justice kennedy opinion share view replace regulatory standards place years judicially crafted rule distilled term significant nexus used swancc extent passing use term become statutory requirement categorically satisfied wetlands adjacent navigable waters tributaries riverside bayview swancc together make clear swancc use term comes sentence significant nexus wetlands waters informed reading clean water act riverside bayview riverside bayview written encompass wetlands adjacent navigable waters tributaries reserved question isolated waters see see also supra determination corps jurisdiction applies wetlands issue cases even setting aside apparent applicability riverside bayview think clear wetlands adjacent tributaries navigable waters generally significant nexus traditionally navigable waters downstream unlike nonnavigable isolated intrastate waters swancc wetlands obviously cumulative effect downstream water flow releasing waters times low flow keeping waters back times high flow logical connection alone gives wetlands limited connection traditionally navigable waters statute requires see disproves justice kennedy claim approach gives meaning word navigable ante opinion concurring judgment similarly wetlands preserve downstream water quality trapping sediment filtering toxic pollutants protecting grounds forth may exist categories wetlands adjacent tributaries traditionally navigable waters taken cumulatively plausibly discernable relationship aspect downstream water quality skeptical even given justice kennedy significant nexus test absence compelling evidence many categories exist see reason conclude corps longstanding regulations overbroad justice kennedy significant nexus test probably much diminish number wetlands covered act long run justice kennedy recognizes records cases contain evidence permit establishment significant nexus ante see also ante seems likely evidence support similar findings wetlands adjacent tributaries navigable waters justice kennedy approach effect creating additional work concerned parties developers wishing fill wetlands adjacent ephemeral intermittent tributaries traditionally navigable waters certain way knowing whether need get permits corps make jurisdictional determinations inevitably increase time resources spent processing permit applications problems precisely ones riverside bayview deferential approach avoided see noting little moment corps jurisdiction encompasses wetlands significantly intertwined waters unlike justice kennedy see reason change riverside bayview approach every reason continue defer executive sensible rule explained swancc congress passed clean water act response recognition based events like burning cuyahoga river cleveland waters become appallingly polluted dissenting opinion act largely succeeded restoring quality nation waters cuyahoga river coated industrial waste oday tion lined restaurants pleasure boat slips epa benefits assessment water pollution control programs since http curtailing corps jurisdiction years plurality needlessly jeopardizes quality waters plurality disregards deference owes executive congressional acquiescence executive position recognized riverside bayview obligation interpret laws rather make justice kennedy approach far fewer faults nonetheless also fails give proper deference agencies entrusted congress implement clean water act affirm judgments cases respectfully dissent decision five members vacate remand close however noting unusual feature judgments cases practice case coming us lower federal enter judgment commanding conduct proceedings pursuant specific mandate prior practice occasion made necessary justices join judgment conform cases however plurality justice kennedy agree must remand proceedings respective opinions define different tests applied remand given four justices joined opinion uphold corps jurisdiction cases cases either plurality justice kennedy test satisfied remand judgments reinstated either tests john rapanos et et petitioners june carabell et petitioners army corps engineers et al writs certiorari appeals sixth circuit june justice breyer dissenting view authority army corps engineers clean water act extends limits congressional power regulate interstate commerce see solid waste agency northern cook cty army corps engineers swancc stevens dissenting therefore difficulty finding wetlands issue cases within corps jurisdiction join justice stevens dissenting opinion view statute rests part upon nature problem statute seeks restore maintain chemical physical biological integrity nation waters waters various intricately interconnected congress might well decided way achieve goal write statute defines waters broadly leave enforcing agency task restricting scope definition either wholesale regulation retail development permissions believe congress using term waters intended fully exercise relevant commerce clause powers mention contrary view written nexus requirement statute swancc supra ante opinion kennedy corps jurisdiction wetlands depends upon existence significant nexus wetlands question navigable waters traditional sense left administrative powers army corps engineers untouched agency may write regulations defining term something yet done courts must give regulations appropriate deference chevron natural resources defense council one thing clear congress intended army corps engineers make complex technical judgments lie heart present cases subject deferential judicial review absence updated regulations courts make ad hoc determinations run risk transforming scientific questions matters law system congress intended hence believe today opinions taken together call army corps engineers write new regulations speedily footnotes together carabell et al army corps engineers et also certiorari footnotes issuing permits corps directs factors may relevant proposal must considered including cumulative effects thereof among conservation economics aesthetics general environmental concerns wetlands historic properties fish wildlife values flood hazards floodplain values land use navigation shore erosion accretion recreation water supply conservation water quality energy needs safety food fiber production mineral needs considerations property ownership general needs welfare people indebted sonoran famous exchange movie casablanca warner portrays vividly absurdity finding desert filled waters renault claude rains heaven name brought casablanca humphrey bogart health came casablanca waters renault waters waters desert misinformed one possibility ultimately find unsatisfactory waters covered strictly intrastate waters traditionally navigable unreasonable interpret waters include traditional navigable waters interstate intrastate preserve traditional import qualifier navigable defined term navigable waters cost depriving qualifier definition meaning traditionally understood latter qualifier excludes intrastate waters whether navigable see daniel ball wall swancc held navigable retained something traditional import fortiori phrase definition retains traditional meaning justice kennedy observes post opinion concurring judgment dictionary approves alternative somewhat poetic usage waters connoting flood inundation waters fallen peril waters wind rocks shak webster second seems us wholly unreasonable interpret statute regulating floods inundations rather traditional waterways strange suppose congress waxed shakespearean definition section otherwise prosaic indeed downright tedious statute duller commonplace meaning obviously intended describing waters relatively permanent necessarily exclude streams rivers lakes might dry extraordinary circumstances drought also necessarily exclude seasonal rivers contain continuous flow months year flow dry months continuously flowing stream postulated justice stevens dissent hereinafter dissent post common sense common usage distinguish wash seasonal river though scientifically precise distinctions perennial intermittent flows doubt available see dept interior geological survey hedman osterkamp streamflow characteristics related channel geometry streams western paper occasion litigation decide exactly stream bed continuous frequent enough disqualify channel wate suffices present purposes channels containing permanent flow plainly within definition dissent intermittent ephemeral streams post opinion stevens streams whose flow oming going intervals roken fitful webster second existing longer day diurnal principal definition stream likewise includes reference permanent geographically fixed bodies water current course water fluid flowing earth river brook etc emphasis added definitions stream repeatedly emphasize requirement continuous flow steady flow water air gas like nything issuing moving continued succession parts continued current course current drift ibid emphases added definition verb form stream contains similar emphasis continuity issue flow stream issue freely move continuous flow course ibid emphasis added definitions therefore corps phrases intermittent streams cfr ephemeral streams fed reg like senator bentsen flowing gullies post opinion stevens useful oxymora properly speaking entities constitute extant streams continuous ly flow ing usually dry channels contain never streams justice kennedy apparently concedes intermittent flow constitute stream flowing post emphasis added mean channel water covered act times water flow actually occurs one contends federal jurisdiction appears evaporates along water regularly dry channels course true dissent justice kennedy observe ditches channels conduits like hold water permanently well intermittently post opinion stevens see also post opinion kennedy usually refer rivers creeks streams permanently flooded ditch around castle technically ditch permanently filled water normally describe moat see webster second permanently flooded ditch used navigation normally described ditch canal see likewise open channel water permanently flows ordinarily described stream channel continuous presence water distinction particularly apt context statute regulating water quality rather example shape stream beds cf jennison kirk referring channels ditches alleged injury arose physical damage banks ditch pud jefferson cty washington dept ecology referring tube tunnel order describe shape conveyance fact cited post opinion stevens natural reading statute treats waters separately ditch es channel tunnel conduit thereby distinguishes continuously flowing waters channels containing occasional intermittent flow also true highly artificial manufactured enclosed conveyance systems sewage treatment plants post opinion kennedy mains pipes hydrants machinery buildings appurtenances incidents city knoxville system waterworks knoxville water knoxville cited post opinion stevens likely qualify waters despite fact may contain continuous flows water see post opinion kennedy post opinion stevens contradict interpretation asserts relatively continuous flow necessary condition qualification water adequate condition ordinary usage treat typically dry beds waters also treat elaborate enclosed systems waters par streams rivers oceans justice kennedy contends corps preservation responsibilities rights adequately demonstrated fact district columbia filed amici brief litigation favor corps interpretation post makes difference statute stated purpose preserving rights responsibilities wish unburden legislative executive officers may content leave responsibilit corps attractive shift another entity controversial decisions disputed politically powerful rival interests however statute provides justice kennedy objects reliance two rules inappropriate plurality interpretation fit avoidance concerns raises post resolution eliminates jurisdiction clearly constitutional traditionally federal retains questionably constitutional traditionally local rule carry one far statutory text permits resolution unlike justice kennedy keeps overinclusion underinclusion minimum consistent statutory text justice kennedy reading despite disregarding text fares better precise fit avoidance concerns also acknowledges admits post significant nexus requirement may align perfectly traditional extent federal authority navigable waters admission tests limits understatement gonzales oregon scalia dissenting aligns even worse preservation traditional state regulation since wetlands issue riverside bayview actually abutted waters case possibly held merely neighboring wetlands came within corps jurisdiction obiter approval proposition might inferred however opinion quotation without comment statement corps describing covered adjacent wetlands form border reasonable proximity waters dissent argues existence words like language suggests least dredged fill material makes way downstream post citation omitted see also post opinion kennedy contrast amici cite multiple empirical analyses contradict dissent philological approach sediment erosion including one concludes idea discharge dredged fill material isolated waters ephemeral drains ditches pollute navigable waters located appreciable distance lacks credibility pierce technical principles related establishing limits jurisdiction section clean water act apr available cited brief international council shopping centers et al amici curiae brief pulte homes et al amici curiae brief foundation environmental economic progress et al amici curiae fill material migrate scientific analysis entirely unnecessary however reach unremarkable conclusion deposit mobile pollutants upstream ephemeral channels naturally described addition navigable waters deposit stationary fill material generally passing reference wetlands adjacent thereto purport expand statutory definition dissent concedes post reference merely confirms statutory definition read include wetlands namely directly abut covered waters riverside bayview explicitly acknowledged conclusively determine construction placed use term elsewhere act particularly contains relevant definition waters however least suggest strongly term used act necessarily exclude emphases added sole exception justice kennedy opinion argues riverside bayview rejected requirement accepting given wetland formed inundation covered waters whether continuously connected covered act riverside bayview suggest origin support jurisdiction indeed presumed opposite see noting corps view valid wetlands result flooding permeation emphasis added post course justice kennedy fails observe supposed presumption since significant nexus test makes exception wetlands created inundation event language riverside bayview justice kennedy parenthetical wrenched context sentence justice kennedy quotes part immediately followed conclusion adjacent wetlands included inherent difficulties defining precise bounds regulable waters full sentence reads follows holds true even wetlands result flooding permeation water source adjacent bodies open water ibid emphasis added clearly wetlands referred sentence adjacent wetlands namely continuous physical connection rest riverside bayview opinion required see supra thus evident quoted language rejection requirement rather rejection alternative position adopted lower case see covered wetlands created inundation long wetland adjacent covered waters said riverside bayview creation vel non inundation irrelevant allusion classic story told different forms attributed various authors see geertz thick description toward interpretive theory culture interpretation cultures favored version eastern guru affirms earth supported back tiger asked supports tiger says stands upon elephant asked supports elephant says giant turtle asked finally supports giant turtle briefly taken aback quickly replies ah turtles way unclear much moderate flouting since justice kennedy significant nexus standard perfectly opaque exactly wetland significantly affect covered waters effects contrast speculative insubstantial post justice kennedy tell us clearly except suggest post isolated generally matter quoting leibowitz nadeau isolated wetlands future directions wetlands dissent hopefully observes post unverifiable standard likely constrain agency whose disregard statutory language long manifested fact stating consolidated cases record contains evidence suggesting possible existence significant nexus according principles outlined post justice kennedy tips wink agency inviting try expansive reading footnotes scope proposed rulemaking narrow justice stevens suggests post dissenting opinion see fed reg additionally invite views whether revisions needed existing regulations waters jurisdictional cwa today notice proposed rulemaking seeks public input revisions light swancc might appropriate regulations define today notice thus interest entities discharging regulating waters emphases added agencies decide whether swancc dissenter suggests wise take action response swancc footnotes pursuant michigan operates permitting program subject supervision army corps willard stud upstream drainage sites well enough make statement whether also performed functions tr contrast id express opinion corps additional assertion jurisdiction wetlands adjacent bodies open water see cfr considering validity application substantively identical wetlands adjacent tributaries traditionally navigable waters covered regulation provisions regulation namely combination covering traditionally navigable waters covering tributaries subsection waters covering wetlands adjacent subsection waters chief justice observes corps epa initially considered revising regulations response swancc ante concurring opinion chief justice neglects mention however almost submit comments opposed significant narrowing corps jurisdiction roughly comment submitters see general accounting office report chairman subcommittee energy policy natural resources regulating affairs committee government reform house representatives waters wetlands corps engineers needs evaluate district office practices determining jurisdiction pp http hereinafter gao report internet materials visited june available clerk case file brief association state interstate water pollution control administrators amicus curiae event agencies decision abandon rulemaking hardly responsible cases hand proposed rulemaking focused isolated waters covered cfr called question swancc rather wetlands adjacent tributaries navigable waters covered combination seemed obviously within agencies jurisdiction light riverside bayview see fed reg agencies seek comment use factors cfr iii determining clean water act jurisdiction isolated intrastate waters unsurprisingly courts appeals consider scope corps jurisdiction swancc unhesitatingly concluded jurisdiction covers intermittent tributaries wetlands adjacent normal sense word traditionally navigable waters tributaries deaton upholding corps jurisdiction wetlands adjacent ditch might contain consistently flowing water drain another ditch drained creek drained navigable waterway headwaters talent irrigation treating waters canals held water intermittently connected tributaries navigable waters rueth development observing clear swancc affect law regarding adjacency upholding corps jurisdiction wetland without finding wetland continuous surface connection adjacent tributary baccarat fremont army corps engineers upholding corps jurisdiction wetlands separated berms traditionally navigable channels observing swancc simply address issue jurisdiction adjacent wetlands see needham reading waters narrowly used oil pollution act indeed corps approves virtually section permit though often requiring applicants avoid mitigate impacts wetlands waters gao report according sunding zilberman article cited plurality ante permits mean cost median cost economics environmental regulation licensing assessment recent changes wetland permitting process natural resources hereinafter sunding zilberman less permits projects significant impacts wetlands mean cost around median cost ibid course every placement fill dredged material waters requires permit fill comes point sources discernible confined discrete conveyance permit needed moreover permits required discharges point sources engaged among things normal farming activities maintenance transportation structures construction irrigation ditches farm roads forest roads temporary mining roads rather defending antagonism environmentalism plurality counters claiming dissent ante policy considerations influenced thinking congress rather considering whether corps interpretation jurisdiction reasonable admittedly taking account congressional purpose protecting physical chemical biological integrity waters see see also chevron natural resources defense council considering whether agency regulation consistent policy concerns motivated clean air act enactment amici briefs filed petitioners behalf come even close asking one plurality two conditions briefs intermittent streams fall outside corps jurisdiction though reasons given plurality see brief national stone sand gravel assn et al brief foundation environmental economic progress et al brief western coalition arid plurality suggest seasonal rivers necessarily exclude corps jurisdiction suggests streams rivers ante explore semantic issues posed latter point former point difficulty understanding seasonal river meet plurality test water present relatively permanent ly failing explain plurality leaves litigants without guidance line draws relatively permanent intermittent lies indeed debate whether restrict scope corps regulatory power senator bentsen recognized corps jurisdiction cover waters including small streams ponds isolated marshes intermittently flowing gullies legislative history clean water act committee print compiled senate committee environment public works library congress ser proposed amendment restrict jurisdiction failed plurality reasoning contrary mystifying plurality emphasizes ditch around castle also called moat navigable manmade channel called canal see ante face even much points nothing whether use word stream rather ditch permanently present water concerned indeed plurality reasoning call canal stream river rather canal moreover use words like ditch without regard whether water present relatively permanently jennison kirk example justice field used term ditch stream describing manmade structure carried water year round see also knoxville water knoxville opinion harlan describing pipes continuously carry water ante plurality opinion using channel reference intermittent relatively permanent waters pud jefferson cty washington dept ecology describing tunnel carry water year round new orleans rivers opinion harlan describing conduits supply water hotel plurality attempt achieve desired outcome redefining terms credit lexicography let alone justice see screws rutledge concurring result turner broadcasting system fcc stevens concurring part concurring judgment hamdi rumsfeld souter concurring part dissenting part concurring judgment assume justice kennedy approach controlling cases treats nation waters within corps jurisdiction unlikely event plurality test met justice kennedy courts also uphold corps jurisdiction sum future cases may elect prove jurisdiction either test