Thomas, J., concurring
state or foreign commerce.” 40 CFR §230.3(s)(3) (2008) (emphasis added). To leave no doubt that the agencies have entirely broken from traditional navigable waters, they give several examples of qualifying waters: those that “are or could be used by interstate or foreign travelers for recreational or other purposes,” those “[f]rom which fish or shellfish are or could be taken and sold in interstate or foreign commerce,” those that “are used or could be used for industrial purposes by industries in interstate commerce,” “[t]ributaries of” any such waters, and “[w]etlands adjacent to” any such waters. §§230.3(s)(3)(i)–(iii), (5), (7). This definition and others like it are premised on the fallacy repudiated in SWANCC: that the text of the CWA expands federal jurisdiction beyond Congress’ traditional “commerce power over navigation.” 531 U. S., at 168, n. 3.
Nonetheless, under these boundless standards, the agencies have “asserted jurisdiction over virtually any parcel of land containing a channel or conduit … through which rainwater or drainage may occasionally or intermittently flow,” including “storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.” Rapanos, 547 U. S., at 722 (plurality opinion). The agencies’ definition “engulf[s] entire cities and immense arid wastelands” alike. Ibid. Indeed, because “the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface,” “any plot of land containing such a channel may potentially be regulated.” Ibid.
If this interpretation were correct, the only prudent move for any landowner in America would be to ask the Federal Government for permission before undertaking any kind of development. See Tr. of Oral Arg. 86, 116–117. This regime turns Congress’ traditionally limited navigation authority on its head. The baseline under the Constitution, the CWA, and the Court’s precedents is state control of waters. See
