Thomas, J., concurring
The Army Corps of Engineers originally understood the CWA in precisely this way. In its 1974 regulation establishing the first CWA §404 permitting program,[1] the Corps interpreted the term “the waters of the United States” to establish jurisdiction over the traditional navigable waters as determined by the expanded Daniel Ball test, noting also that the term is limited by Congress’ navigation authority. 39 Fed. Reg. 12115. The Corps anchored its jurisdiction in the expanded Daniel Ball test, defining “navigable waters” to include “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.” 33 CFR §209.120(d)(1) (1974); see also §§209.260(d)(1)–(3) (requiring “[p]ast, present, or potential presence of interstate or foreign commerce,” “[p]hysical capabilities for use by commerce,” and “[d]efined geographic limits of the water body”). The regulations also made clear that traditional navigability factors were the baseline for CWA jurisdiction: “It is the water body’s capability of use by the public for purposes of transportation or commerce which is the determinative factor.” §209.260(e)(1).
Almost immediately, however, a few courts and the recently created Environmental Protection Agency (EPA) rejected this interpretation. Instead, they interpreted the CWA to assert the full extent of Congress’ New Deal era authority to regulate anything that substantially affects interstate commerce by itself or in the aggregate. See United States v. Ashland Oil & Transp. Co., 504 F. 2d 1317, 1323–1329 (CA6 1974); P. F. Z. Properties, Inc. v. Train, 393 F. Supp. 1370, 1381 (DC 1975); National Resource Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975);
- ↑ Section 404 authorizes the Corps to “issue permits … for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U. S. C. §§1344(a), (d).
