Thomas, J., concurring
II
This history demonstrates that Congress was not writing on a blank slate in the CWA, which defines federal jurisdiction using the same terms used in the River and Harbor Acts: “navigable waters” and “the waters of the United States,” 33 U. S. C. §§1311(a), 1362(7), (12). As explained above, courts and Congress had long used the terms “navigable water,” “navigable water of the United States,” and “the waters of the United States” interchangeably to signify those waters to which the traditional channels-of-commerce authority extended. See supra, at 6. The terms “navigable waters” and “waters of the United States” shared a core requirement that the water be a “highway over which commerce is or may be carried,” with the term “of the United States” doing the independent work of requiring that such commerce “be carried on with other States or foreign countries.” The Daniel Ball, 10 Wall., at 563. The text of the CWA thus reflects the traditional balance between federal and state authority over navigable waters, as set out by The Daniel Ball. It would be strange indeed if Congress sought to effect a fundamental transformation of federal jurisdiction over water through phrases that had been in use to describe the traditional scope of that jurisdiction for well over a century and that carried a well-understood meaning.[1]
- ↑ In fact, when Congress has wished to depart from this traditional meaning, it has done so expressly, as in parts of the Federal Power Act, §23, 41 Stat. 1075 (requiring approval for dam construction “across, along, over, or in any stream or part thereof, other than those defined herein this chapter as navigable waters”); the Federal Water Pollution Control Act, ch. 758, §2(a), 62 Stat. 1155 (as amended, 86 Stat. 816) (authorizing federal-state cooperation to abate water pollution in “interstate waters” and their tributaries); and the Water Quality Act of 1965, 79 Stat. 905–906 (authorizing grants to research abatement of pollution into “any waters”); see Hardy Salt Co. v. Southern Pacific Transp. Co., 501 F. 2d 1156, 1168 (CA10 1974) (noting that Congress only departs from the expanded Daniel Ball test by using “clear and explicit language,” as it did in parts of the Federal Power Act).
