Page:Sackett v. EPA (2023).pdf/54

20 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. Instead, we made clear that Congress did not intend