Thomas, J., concurring
United States” does not mean any water in the United States.
There would be little need to explain any of this if the agencies had not effectively flouted our decision in SWANCC, which restored navigability as the touchstone of federal jurisdiction under the CWA, and rejected the key arguments supporting an expansive interpretation of the CWA’s text. We expressly held that Congress’ “use of the phrase ‘waters of the United States’ ” in the CWA is not “a basis for reading the term ‘navigable waters’ out of the statute”—directly contradicting the EPA’s 1973 interpretation, upon which every subsequent expansion of its authority has been based. 531 U. S., at 172. We also held that the Corps did not “mist[ake] Congress’ intent” when it promulgated its 1974 regulations, under which “ ‘the determinative factor’ ” for navigability was a “ ‘water body’s capability of use by the public for purposes of transportation or commerce.’ ” Id., at 168 (quoting 33 CFR §209.260(e)(1)). In doing so, we rejected reliance on the CWA’s “ambiguous” legislative history, which the EPA had used “to expand the definition of ‘navigable waters’ ” to the outer limit of the commerce authority as interpreted in the New Deal. 531 U. S., at 168, n. 3.[1] Instead, we made clear that Congress did not intend
- ↑ The historical context demonstrates that it was the Corps’ failure to regulate to the full extent of Congress’ navigation power, not its commerce power generally, that led to the enactment of the CWA. See Albrecht & Nickelsburg, 11047 (explaining that the CWA’s legislative history is better interpreted “as the Supreme Court in SWANCC read it, to mean simply that Congress intended to override previous, unduly narrow agency interpretations to assert its broadest constitutional authority over the traditional navigable waters”); see also S. Bodine, Examining the Term “Waters of the United States” in Its Historical Context, C.
(1940), that Congress can regulate things in navigable waters for purposes other than removing obstructions to navigable capacity. I note, however, that before the New Deal era, courts consistently construed statutes to authorize only federal actions preserving navigable capacity in order to avoid exceeding Congress’ navigation authority. See supra, at 8–13.
