Thomas, J., concurring
United States, in contradistinction from the navigable waters of the States,’ … distinguishes interstate from intrastate waters.” Albrecht & Nickelsburg 11049 (quoting The Daniel Ball, 10 Wall., at 563); accord, 1 A. Knauth, Benedict on Admiralty §44, p. 96 (6th ed. 1940) (“The inland lakes of various States are navigable but, having no navigable outlet linking them with our system of water-ways, have never been held to be public waters of the United States” (emphasis added)). The text of the CWA extends jurisdiction to “navigable waters,” and—precisely tracking The Daniel Ball—clarifies that it reaches “the waters of the United States,” rather than the navigable waters of the States.
Thus, the CWA’s use of the phrase “the waters of the United States” reinforces, rather than lessens, the need for a water to be at least part of “a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” The Daniel Ball, 10 Wall., at 563. At most, the omission of the word “navigable” signifies that the CWA adopts the expanded Daniel Ball test—that includes waters that are, have been, or can be reasonably made navigable in fact—in its statutory provisions. The Federal Government’s interpretation, by contrast, renders the use of the term “navigable” a nullity and involves an unprecedented and extravagant reading of the well-understood term of art “the waters of the United States.” See Albrecht & Nickelsburg 11049 (“EPA’s conclusion is ahistorical as well as illogical”).[1] “[T]he waters of the
- ↑ To be sure, the CWA is more aggressive in regulating navigable waters than the River and Harbor Acts. But, the increased stringency is not accomplished by expanding jurisdiction. The Acts use the same jurisdictional terms. Instead, the difference between them lies in the expanded scope of activities that the CWA regulates and its shift from an enforcement and injunctive regime to a previolation licensing regime. See Albrecht & Nickelsburg 11046. I express no view on the constitutionality of this regime as applied to navigable waters or on the Court’s holding in United States v. Appalachian Elec. Power Co., 311 U. S. 377
