(Slip Opinion)              OCTOBER TERM, 2011                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

 SACKETT ET VIR v. ENVIRONMENTAL PROTECTION 

                   AGENCY ET AL. 


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE NINTH CIRCUIT

    No. 10–1062. Argued January 9, 2012—Decided March 21, 2012
The Clean Water Act prohibits “the discharge of any pollutant by any
  person,” 

. §1311, without a permit, into “navigable waters,”
  §1344. Upon determining that a violation has occurred, the Envi-
  ronmental Protection Agency (EPA) may either issue a compliance
  order or initiate a civil enforcement action. §1319(a)(3). The result-
  ing civil penalty may not “exceed [$37,500] per day for each viola-
  tion.” §1319(d). The Government contends that the amount doubles
  to $75,000 when the EPA prevails against a person who has been is-
  sued a compliance order but has failed to comply.
     The Sacketts, petitioners here, received a compliance order from
  the EPA, which stated that their residential lot contained navigable
  waters and that their construction project violated the Act. The
  Sacketts sought declarative and injunctive relief in the Federal Dis-
  trict Court, contending that the compliance order was “arbitrary
  [and] capricious” under the Administrative Procedure Act (APA), 

. §706(2)(A), and that it deprived them of due process in viola-
  tion of the Fifth Amendment. The District Court dismissed the
  claims for want of subject-matter jurisdiction. The Ninth Circuit af-
  firmed, concluding that the Clean Water Act precluded pre-
  enforcement judicial review of compliance orders and that such pre-
  clusion did not violate due process.
Held: The Sacketts may bring a civil action under the APA to challenge
 the issuance of the EPA’s order. Pp. 4–10.
    (a) The APA provides for judicial review of “final agency action for
 which there is no other adequate remedy in a court.” 

. §704.
 The compliance order here has all the hallmarks of APA finality.
 Through it, the EPA “determined” “rights or obligations,” Bennett v.
2                             SACKETT v. EPA

                                   Syllabus

    Spear, 

, 178, requiring the Sacketts to restore their
    property according to an agency-approved plan and to give the EPA
    access. Also, “legal consequences . . . flow” from the order, ibid.,
    which, according to the Government’s litigating position, exposes the
    Sacketts to double penalties in future enforcement proceedings. The
    order also severely limits their ability to obtain a permit for their fill
    from the Army Corps of Engineers, see 

. §1344; 33 CFR
    §326.3(e)(1)(iv). Further, the order’s issuance marks the “consumma-
    tion” of the agency’s decisionmaking process, 

,
    for the EPA’s findings in the compliance order were not subject to
    further agency review. The Sacketts also had “no other adequate
    remedy in a court,” 

. §704. A civil action brought by the EPA
    under 

. §1319 ordinarily provides judicial review in such
    cases, but the Sacketts cannot initiate that process. And each day
    they wait, they accrue additional potential liability. Applying to the
    Corps of Engineers for a permit and then filing suit under the APA if
    that permit is denied also does not provide an adequate remedy for
    the EPA’s action. Pp. 4–6.
       (b) The Clean Water Act is not a statute that “preclude[s] judicial
    review” under the APA, 

. §701(a)(1). The APA creates a
    “presumption favoring judicial review of administrative action.”
    Block v. Community Nutrition Institute, 

, 349. While
    this presumption “may be overcome by inferences of intent drawn
    from the statutory scheme as a whole,” ibid., the Government’s ar-
    guments do not support an inference that the Clean Water Act’s stat-
    utory scheme precludes APA review. Pp. 7–10.

, reversed and remanded.

   SCALIA, J., delivered the opinion for a unanimous Court. GINSBURG,
J., and ALITO, J., filed concurring opinions.
                        Cite as: 566 U. S. ____ (2012)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash­
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 10–1062
                                   _________________


CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI-
   RONMENTAL PROTECTION AGENCY, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT
                                [March 21, 2012]

   JUSTICE SCALIA delivered the opinion of the Court.
   We consider whether Michael and Chantell Sackett may
bring a civil action under the Administrative Procedure
Act, 

. §500 et seq., to challenge the issuance by
the Environmental Protection Agency (EPA) of an admin­
istrative compliance order under §309 of the Clean Water
Act, 

. §1319. The order asserts that the Sack­
etts’ property is subject to the Act, and that they have
violated its provisions by placing fill material on the prop­
erty; and on this basis it directs them immediately to
restore the property pursuant to an EPA work plan.
                              I
   The Clean Water Act prohibits, among other things, “the
discharge of any pollutant by any person,” §1311, without
a permit, into the “navigable waters,” §1344—which the
Act defines as “the waters of the United States,” §1362(7).
If the EPA determines that any person is in violation of
this restriction, the Act directs the agency either to issue
a compliance order or to initiate a civil enforcement action.
§1319(a)(3). When the EPA prevails in a civil action, the
Act provides for “a civil penalty not to exceed [$37,500] per
2                         SACKETT v. EPA

                         Opinion of the Court

day for each violation.”1 §1319(d). And according to the
Government, when the EPA prevails against any person
who has been issued a compliance order but has failed
to comply, that amount is increased to $75,000—up to
$37,500 for the statutory violation and up to an additional
$37,500 for violating the compliance order.
  The particulars of this case flow from a dispute about
the scope of “the navigable waters” subject to this en­
forcement regime. Today we consider only whether the
dispute may be brought to court by challenging the com­
pliance order—we do not resolve the dispute on the merits.
The reader will be curious, however, to know what all
the fuss is about. In United States v. Riverside Bayview
Homes, Inc., 

(1985), we upheld a regulation
that construed “the navigable waters” to include “freshwa­
ter wetlands,” 

themselves not actually naviga­
ble, that were adjacent to navigable-in-fact waters. Later,
in Solid Waste Agency of Northern Cook Cty. v. Army
Corps of Engineers, 

(2001), we held that an
abandoned sand and gravel pit, which “seasonally ponded”
but which was not adjacent to open water, 

was
not part of the navigable waters. Then most recently, in
Rapanos v. United States, 

(2006), we consid­
ered whether a wetland not adjacent to navigable-in-fact
waters fell within the scope of the Act. Our answer was
no, but no one rationale commanded a majority of the
Court. In his separate opinion, THE CHIEF JUSTICE ex­
pressed the concern that interested parties would lack
——————
    1 The
        original statute set a penalty cap of $25,000 per violation per
day. The Federal Civil Penalties Inflation Adjustment Act of 1990, 104
Stat. 890, note following 

. §2461, as amended by the Debt
Collection Improvement Act of 1996, §3720E, 110 Stat. 1321–373, note
following 

. §2461, p. 1315 (Amendment), authorizes the EPA
to adjust that maximum penalty for inflation. On the basis of that
authority, the agency has raised the cap to $37,500. See 74 Fed. Reg.
626, 627 (2009).
                 Cite as: 566 U. S. ____ (2012)            3

                     Opinion of the Court

guidance “on precisely how to read Congress’ limits on the
reach of the Clean Water Act” and would be left “to feel
their way on a case-by-case basis.” 

(concurring
opinion).
  The Sacketts are interested parties feeling their way.
They own a 2⁄3-acre residential lot in Bonner County,
Idaho. Their property lies just north of Priest Lake, but is
separated from the lake by several lots containing perma­
nent structures. In preparation for constructing a house,
the Sacketts filled in part of their lot with dirt and rock.
Some months later, they received from the EPA a compli­
ance order. The order contained a number of “Findings
and Conclusions,” including the following:
    “1.4 [The Sacketts’ property] contains wetlands with­
    in the meaning of 33 C. F. R. §328.4(8)(b); the wet­
    lands meet the criteria for jurisdictional wetlands in
    the 1987 ‘Federal Manual for Identifying and Deline­
    ating Jurisdictional Wetlands.’
    “1.5 The Site’s wetlands are adjacent to Priest Lake
    within the meaning of 33 C. F. R. §328.4(8)(c). Priest
    Lake is a ‘navigable water’ within the meaning of sec­
    tion 502(7) of the Act, 

. §1362(7), and ‘wa­
    ters of the United States’ within the meaning of 40
    C. F. R. §232.2.
    “1.6 In April and May, 2007, at times more fully
    known to [the Sacketts, they] and/or persons acting on
    their behalf discharged fill material into wetlands at
    the Site. [They] filled approximately one half acre.
        .            .          .          .           .
    “1.9 By causing such fill material to enter waters of
    the United States, [the Sacketts] have engaged, and
    are continuing to engage, in the ‘discharge of pollu­
    tants’ from a point source within the meaning of sec­
    tions 301 and 502(12) of the Act, 

. §§1311
    and 1362(12).
        .            .          .          .           .
4                     SACKETT v. EPA

                     Opinion of the Court

    “1.11 [The Sacketts’] discharge of pollutants into wa­
    ters of the United States at the Site without [a] per­
    mit constitutes a violation of section 301 of the Act, 

. §1311.” App. 19–20.
On the basis of these findings and conclusions, the order
directs the Sacketts, among other things, “immediately
[to] undertake activities to restore the Site in accordance
with [an EPA-created] Restoration Work Plan” and to “pro-
vide and/or obtain access to the Site . . . [and] access to
all records and documentation related to the conditions at
the Site . . . to EPA employees and/or their designated
representatives.” 

¶¶2.1, 2.7.
   The Sacketts, who do not believe that their property is
subject to the Act, asked the EPA for a hearing, but that
request was denied. They then brought this action in the
United States District Court for the District of Idaho,
seeking declaratory and injunctive relief. Their complaint
contended that the EPA’s issuance of the compliance order
was “arbitrary [and] capricious” under the Administrative
Procedure Act (APA), 

. §706(2)(A), and that it
deprived them of “life, liberty, or property, without due
process of law,” in violation of the Fifth Amendment. The
District Court dismissed the claims for want of subject­
matter jurisdiction, and the United States Court of Ap­
peals for the Ninth Circuit affirmed, 

(2010).    It concluded that the Act “preclude[s] pre­
enforcement judicial review of compliance orders,” 

and that such preclusion does not violate the Fifth
Amendment’s due process guarantee, 

We
granted certiorari. 564 U. S. ___ (2011).
                             II
  The Sacketts brought suit under Chapter 7 of the APA,
which provides for judicial review of “final agency action
for which there is no other adequate remedy in a court.” 

. §704. We consider first whether the compliance
                     Cite as: 566 U. S. ____ (2012)                   5

                         Opinion of the Court

order is final agency action. There is no doubt it is agency
action, which the APA defines as including even a “failure
to act.” §§551(13), 701(b)(2). But is it final? It has all of
the hallmarks of APA finality that our opinions establish.
Through the order, the EPA “ ‘determined’ ” “ ‘rights or ob­
ligations.’ ” Bennett v. Spear, 

, 178 (1997)
(quoting Port of Boston Marine Terminal Assn. v. Re-
deriaktiebolaget Transatlantic, 

, 71 (1970)).
By reason of the order, the Sacketts have the legal obliga­
tion to “restore” their property according to an agency­
approved Restoration Work Plan, and must give the EPA
access to their property and to “records and documentation
related to the conditions at the Site.” App. 22, ¶2.7. Also,
“ ‘legal consequences . . . flow’ ” from issuance of the order.

(quoting Marine 

). For one, according to the Government’s current
litigating position, the order exposes the Sacketts to dou­
ble penalties in a future enforcement proceeding.2 It also
severely limits the Sacketts’ ability to obtain a permit for
their fill from the Army Corps of Engineers, see 

.
§1344. The Corps’ regulations provide that, once the EPA
has issued a compliance order with respect to certain
property, the Corps will not process a permit application
for that property unless doing so “is clearly appropriate.”
33 CFR §326.3(e)(1)(iv) (2011).3
    The issuance of the compliance order also marks the
“ ‘consummation’ ” of the agency’s decisionmaking process.
——————
  2 We do not decide today that the Government’s position is correct,

but assume the consequences of the order to be what the Government
asserts.
  3 The regulation provides this consequence for “enforcement litigation

that has been initiated by other Federal . . . regulatory agencies.” 33
CFR §326.3(e)(1)(iv) (2011). The Government acknowledges, however,
that EPA’s issuance of a compliance order is considered by the Corps to
fall within the provision. Brief for Respondents 31. Here again, we
take the Government at its word without affirming that it represents a
proper interpretation of the regulation.
6                     SACKETT v. EPA

                     Opinion of the Court

(quoting Chicago & Southern Air
Lines, Inc. v. Waterman S. S. Corp., 

, 113
(1948)). As the Sacketts learned when they unsuccessfully
sought a hearing, the “Findings and Conclusions” that the
compliance order contained were not subject to further
agency review. The Government resists this conclusion,
pointing to a portion of the order that invited the Sacketts
to “engage in informal discussion of the terms and re­
quirements” of the order with the EPA and to inform the
agency of “any allegations [t]herein which [they] believe[d]
to be inaccurate.” App. 22–23, ¶2.11. But that confers no
entitlement to further agency review. The mere possibil­
ity that an agency might reconsider in light of “informal
discussion” and invited contentions of inaccuracy does not
suffice to make an otherwise final agency action nonfinal.
   The APA’s judicial review provision also requires that
the person seeking APA review of final agency action have
“no other adequate remedy in a court,” 

. §704. In
Clean Water Act enforcement cases, judicial review ordi­
narily comes by way of a civil action brought by the EPA
under 

. §1319. But the Sacketts cannot initiate
that process, and each day they wait for the agency to drop
the hammer, they accrue, by the Government’s telling, an
additional $75,000 in potential liability. The other possi­
ble route to judicial review—applying to the Corps of
Engineers for a permit and then filing suit under the APA
if a permit is denied—will not serve either. The remedy
for denial of action that might be sought from one agency
does not ordinarily provide an “adequate remedy” for ac-
tion already taken by another agency. The Government,
to its credit, does not seriously contend that other availa­
ble remedies alone foreclose review under §704. Instead,
the Government relies on §701(a)(1) of the APA, which
excludes APA review “to the extent that [other] statutes
preclude judicial review.” The Clean Water Act, it says, is
such a statute.
                  Cite as: 566 U. S. ____ (2012)             7

                      Opinion of the Court

                               III
   Nothing in the Clean Water Act expressly precludes
judicial review under the APA or otherwise. But in de­
termining “[w]hether and to what extent a particular
statute precludes judicial review,” we do not look “only [to]
its express language.” Block v. Community Nutrition
Institute, 

, 345 (1984). The APA, we have
said, creates a “presumption favoring judicial review of
administrative action,” but as with most presumptions,
this one “may be overcome by inferences of intent drawn
from the statutory scheme as a whole.” 

The
Government offers several reasons why the statutory
scheme of the Clean Water Act precludes review.
   The Government first points to 

. §1319(a)(3),
which provides that, when the EPA “finds that any person
is in violation” of certain portions of the Act, the agency
“shall issue an order requiring such person to comply
with [the Act], or . . . shall bring a civil action [to enforce
the Act].” The Government argues that, because Congress
gave the EPA the choice between a judicial proceeding and
an administrative action, it would undermine the Act to
allow judicial review of the latter. But that argument
rests on the question-begging premise that the relevant
difference between a compliance order and an enforcement
proceeding is that only the latter is subject to judicial
review. There are eminently sound reasons other than
insulation from judicial review why compliance orders
are useful. The Government itself suggests that they
“provid[e] a means of notifying recipients of potential vio­
lations and quickly resolving the issues through volun-
tary compliance.” Brief for Respondents 39. It is entirely
consistent with this function to allow judicial review when
the recipient does not choose “voluntary compliance.” The
Act does not guarantee the EPA that issuing a compliance
order will always be the most effective choice.
   The Government also notes that compliance orders are
8                     SACKETT v. EPA

                     Opinion of the Court

not self-executing, but must be enforced by the agency in
a plenary judicial action. It suggests that Congress there­
fore viewed a compliance order “as a step in the delibera­
tive process[,] . . . rather than as a coercive sanction that
itself must be subject to judicial review.” 

But
the APA provides for judicial review of all final agency
actions, not just those that impose a self-executing sanc­
tion. And it is hard for the Government to defend its claim
that the issuance of the compliance order was just “a step
in the deliberative process” when the agency rejected the
Sacketts’ attempt to obtain a hearing and when the next
step will either be taken by the Sacketts (if they comply
with the order) or will involve judicial, not administrative,
deliberation (if the EPA brings an enforcement action). As
the text (and indeed the very name) of the compliance
order makes clear, the EPA’s “deliberation” over whether
the Sacketts are in violation of the Act is at an end; the
agency may still have to deliberate over whether it is
confident enough about this conclusion to initiate litiga­
tion, but that is a separate subject.
   The Government further urges us to consider that Con­
gress expressly provided for prompt judicial review, on the
administrative record, when the EPA assesses administra­
tive penalties after a hearing, see §1319(g)(8), but did not
expressly provide for review of compliance orders. But if
the express provision of judicial review in one section of
a long and complicated statute were alone enough to over-
come the APA’s presumption of reviewability for all final
agency action, it would not be much of a presumption at
all.
   The cases on which the Government relies simply are
not analogous. In Block v. Community Nutrition 

, we held that the Agricultural Marketing Agree­
ment Act of 1937, which expressly allowed milk handlers
to obtain judicial review of milk market orders, precluded
review of milk market orders in suits brought by milk
                  Cite as: 566 U. S. ____ (2012)            9

                      Opinion of the Court

–348. Where a statute pro­
vides that particular agency action is reviewable at the
instance of one party, who must first exhaust administra­
tive remedies, the inference that it is not reviewable at the
instance of other parties, who are not subject to the admin­
istrative process, is strong. In United States v. Erika, Inc.,

(1982), we held that the Medicare statute,
which expressly provided for judicial review of awards
under Part A, precluded review of awards under Part B.

The strong parallel between the award
provisions in Part A and Part B of the Medicare statute
does not exist between the issuance of a compliance order
and the assessment of administrative penalties under the
Clean Water Act. And in United States v. Fausto, 

(1988), we held that the Civil Service Reform
Act, which expressly excluded certain “nonpreference”
employees from the statute’s review scheme, precluded
review at the instance of those employees in a separate
Claims Court action. 

Here, there is no
suggestion that Congress has sought to exclude compli­
ance-order recipients from the Act’s review scheme; quite
to the contrary, the Government’s case is premised on the
notion that the Act’s primary review mechanisms are open
to the Sacketts.
   Finally, the Government notes that Congress passed the
Clean Water Act in large part to respond to the inefficien­
cy of then-existing remedies for water pollution. Compli­
ance orders, as noted above, can obtain quick remediation
through voluntary compliance. The Government warns
that the EPA is less likely to use the orders if they are
subject to judicial review. That may be true—but it will be
true for all agency actions subjected to judicial review.
The APA’s presumption of judicial review is a repudiation
of the principle that efficiency of regulation conquers all.
And there is no reason to think that the Clean Water Act
was uniquely designed to enable the strong-arming of
10                    SACKETT v. EPA

                     Opinion of the Court

regulated parties into “voluntary compliance” without the
opportunity for judicial review—even judicial review of the
question whether the regulated party is within the EPA’s
jurisdiction. Compliance orders will remain an effective
means of securing prompt voluntary compliance in those
many cases where there is no substantial basis to question
their validity.
                        *    *    *
   We conclude that the compliance order in this case is
final agency action for which there is no adequate remedy
other than APA review, and that the Clean Water Act does
not preclude that review. We therefore reverse the judg­
ment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.

                                            It is so ordered.
                  Cite as: 566 U. S. ____ (2012)            1

                    GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 10–1062
                          _________________


CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI-
   RONMENTAL PROTECTION AGENCY, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT
                        [March 21, 2012]

   JUSTICE GINSBURG, concurring.
   Faced with an EPA administrative compliance order
threatening tens of thousands of dollars in civil penalties
per day, the Sacketts sued “to contest the jurisdictional
bases for the order.” Brief for Petitioners 9. “As a logical
prerequisite to the issuance of the challenged compliance
order,” the Sacketts contend, “EPA had to determine that
it has regulatory authority over [our] property.” 

The Court holds that the Sacketts may immediate-
ly litigate their jurisdictional challenge in federal court. I
agree, for the Agency has ruled definitively on that ques-
tion. Whether the Sacketts could challenge not only the
EPA’s authority to regulate their land under the Clean
Water Act, but also, at this pre-enforcement stage, the
terms and conditions of the compliance order, is a question
today’s opinion does not reach out to resolve. Not raised
by the Sacketts here, the question remains open for an-
other day and case. On that understanding, I join the
Court’s opinion.
                 Cite as: 566 U. S. ____ (2012)            1

                     ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 10–1062
                         _________________


CHANTELL SACKETT, ET VIR, PETITIONERS v. ENVI-
   RONMENTAL PROTECTION AGENCY, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE NINTH CIRCUIT
                       [March 21, 2012]

   JUSTICE ALITO, concurring.
   The position taken in this case by the Federal Govern-
ment—a position that the Court now squarely rejects—
would have put the property rights of ordinary Americans
entirely at the mercy of Environmental Protection Agency
(EPA) employees.
   The reach of the Clean Water Act is notoriously unclear.
Any piece of land that is wet at least part of the year is in
danger of being classified by EPA employees as wetlands
covered by the Act, and according to the Federal Govern-
ment, if property owners begin to construct a home on a
lot that the agency thinks possesses the requisite wetness,
the property owners are at the agency’s mercy. The EPA
may issue a compliance order demanding that the own-
ers cease construction, engage in expensive remedial
measures, and abandon any use of the property. If the
owners do not do the EPA’s bidding, they may be fined up
to $75,000 per day ($37,500 for violating the Act and
another $37,500 for violating the compliance order). And
if the owners want their day in court to show that their lot
does not include covered wetlands, well, as a practical
matter, that is just too bad. Until the EPA sues them,
they are blocked from access to the courts, and the EPA
may wait as long as it wants before deciding to sue. By
that time, the potential fines may easily have reached the
2                     SACKETT v. EPA

                     ALITO, J., concurring

millions. In a nation that values due process, not to men-
tion private property, such treatment is unthinkable.
   The Court’s decision provides a modest measure of re-
lief. At least, property owners like petitioners will have
the right to challenge the EPA’s jurisdictional determina-
tion under the Administrative Procedure Act. But the
combination of the uncertain reach of the Clean Water Act
and the draconian penalties imposed for the sort of viola-
tions alleged in this case still leaves most property owners
with little practical alternative but to dance to the EPA’s
tune.
   Real relief requires Congress to do what it should have
done in the first place: provide a reasonably clear rule re-
garding the reach of the Clean Water Act. When Con-
gress passed the Clean Water Act in 1972, it provided
that the Act covers “the waters of the United States.” 

. §1362(7). But Congress did not define what it
meant by “the waters of the United States”; the phrase
was not a term of art with a known meaning; and the
words themselves are hopelessly indeterminate. Unsur-
prisingly, the EPA and the Army Corps of Engineers in-
terpreted the phrase as an essentially limitless grant of
authority. We rejected that boundless view, see Rapanos
v. United States, 

, 732–739 (2006) (plurality
opinion); Solid Waste Agency of Northern Cook Cty. v.
Army Corps of Engineers, 

, 167–174 (2001),
but the precise reach of the Act remains unclear. For 40
years, Congress has done nothing to resolve this critical
ambiguity, and the EPA has not seen fit to promulgate a
rule providing a clear and sufficiently limited definition of
the phrase. Instead, the agency has relied on informal
guidance. But far from providing clarity and predictabil-
ity, the agency’s latest informal guidance advises property
owners that many jurisdictional determinations concern-
ing wetlands can only be made on a case-by-case basis by
EPA field staff. See Brief for Competitive Enterprise
                 Cite as: 566 U. S. ____ (2012)          3

                     ALITO, J., concurring

Institute as Amicus Curiae 7–13.
  Allowing aggrieved property owners to sue under the
Administrative Procedure Act is better than nothing, but
only clarification of the reach of the Clean Water Act can
rectify the underlying problem.