Kavanaugh rejects Sackett's narrow wetlands test
Brett KavanaughAssociate justice, concurring in the judgment
Kavanaugh argues that the majority's wetlands test departs from the statute and precedent.
Responding to
Clean Water Act coverage of adjacent wetlands requires a continuous surface connection that makes the wetland practically indistinguishable from covered waters.
“In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents.”
Original text
Where this statement fits
Alito and Kavanaugh split over Sackett's Clean Water Act wetlands test
All nine justices agreed that the Sacketts should win their wetlands case. They split over the governing test. Justice Samuel Alito requires a continuous surface connection to covered waters; Justice Brett Kavanaugh says that excludes neighboring wetlands Congress protected.
Source and context
Original text
About this source
The justices agree on the judgment for the Sacketts but divide over the continuous-surface-connection test for covered wetlands.
Archived copy (opens in a new tab)Before the quotation
Kavanaugh agrees that the Sacketts should prevail and that the significant-nexus test should be rejected.
After the quotation
He rejects replacing adjacent with adjoining, citing neighboring wetlands separated by barriers.
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
His criticism is directed at the majority's test. Agreement with the judgment does not defend that test.
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More from this case
Read the full caseAlito adopts the continuous-surface-connection test in Sackett
“We agree with this formulation of when wetlands are part of “the waters of the United States.””Read statement
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The Dispute Index. "Kavanaugh rejects Sackett's narrow wetlands test". First published: 2026-10-22. Last updated: 2026-10-22. https://disputeindex.com/events/6455-kavanaugh-argues-that-the-majority-s-wetlands-test