Thomas, J., concurring
authority, SWANCC noted that any broader interpretation would raise “significant constitutional and federalism questions” and “result in a significant impingement of the States’ traditional and primary authority over land and water use.” 531 U. S., at 174. Both in its holdings and in its mode of analysis, SWANCC cannot be reconciled with the agencies’ sharp departure from the centuries-old understanding of navigability and the traditional limits of Congress’ channels-of-commerce authority.
In sum, the plain text of the CWA and our opinion in SWANCC demonstrate that the CWA must be interpreted in light of Congress’ traditional authority over navigable waters. See Albrecht & Nickelsburg 11055 (noting that SWANCC “states more than once that Congress’ use of the term ‘navigable waters’ signifies that Congress intended to exercise its traditional authority over navigable waters, and not its broader power over all things that substantially affect commerce”). Yet, for decades, the EPA (of its own license) and the Corps (under the compulsion of an unreasoned and since discredited District Court order) have issued substantively identical regulatory definitions of “the waters of the United States” that completely ignore navigability and instead expand the CWA’s coverage to the outer limits of the Court’s New Deal-era Commerce Clause precedents.
III
This case demonstrates the unbounded breadth of the jurisdiction that the EPA and the Corps have asserted under the CWA. The regulatory definition applied to the Sacketts’ property declares “intrastate” waters, wetlands, and various other wet things to be “waters of the United States” if their “use, degradation or destruction … could affect inter-
than a negative inference from a parenthetical in a subsection that preserves state authority, is counterintuitive to say the least.
