Thomas, J., concurring
“to exert anything more than its commerce power over navigation.” Ibid.; see also id., at 173 (rejecting the Government’s argument that the CWA invokes “Congress’ power to regulate intrastate activities that ‘substantially affect’ interstate commerce”).
SWANCC thus interpreted the text of the CWA as implementing Congress’ “traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made”—i.e., the expanded Daniel Ball test. 531 U. S., at 172 (citing Appalachian Elec., 311 U. S., at 407–408).[1] And, consistent with the traditional link between navigability and the limits of Congress’ regulatory
- ↑ Section 404(g), added by the 1977 CWA Amendments, does not demonstrate that the CWA departs from traditional conceptions of navigability. That provision states that States may administer permit programs for discharges into “navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce … , including wetlands adjacent thereto).” 91 Stat. 1601 (codified, as amended, at 33 U. S. C. §1344(g)). This provision thus authorizes States to establish their own permit programs over a discrete class of traditionally navigable waters of the United States: those that once were navigable waters of the United States, but are no longer navigable in fact. See Economy Light & Power Co., 256 U. S., at 123–124. Some have asserted that this nonjurisdictional provision—the function of which in the statute is to expand state authority—signals that Congress actually intended an unprecedented expansion of federal authority over the States. Rapanos v. United States, 547 U. S. 715, 805–806 (2006) (Stevens, J., dissenting); see also post, at 3–5 (Kavanaugh, J., concurring in judgment); post, at 1–3 (Kagan, J., concurring in judgment). But, as the Court explains, not only is §404(g) not the relevant definitional provision, its reference to “wetlands” is perfectly consistent with the commonsense recognition that some wetlands are indistinguishable from navigable waters with which they have continuous surface connections. Ante, at 18–22, 27. To infer Congress’ intent to upend over a century of settled understanding and effect an unprecedented transfer of authority over land and water to the Federal Government, based on nothing more
Boyden Gray Center for the Study of the Administrative State Policy Brief No. 4 (2022).
