Cite as: 531 U. S. 159 (2001)
Stevens, J., dissenting
II
As the majority correctly notes, ante, at 168, when the Corps first promulgated regulations pursuant to § 404 of the 1972 Act, it construed its authority as being essentially the same as it had been under the 1899 RHA.8 The reaction to those regulations in the federal courts,9 in the Environmental Protection Agency (EPA),10 and in Congress 11 convinced
8 The Corps later acknowledged that the 1974 regulations "limited the Section 404 permit program to the same waters that were being regulated under the River and Harbor Act of 1899." 42 Fed. Reg. 37123 (1977). Although refusing to defer to the Corps' present interpretation of the statute, ante, at 172, the majority strangely attributes some significance to the Corps' initial reluctance to read the 1972 Act as expanding its jurisdiction, ante, at 168 ("Respondents put forward no persuasive evidence that the Corps mistook Congress' intent in 1974"). But, stranger still, by construing the statute as extending to nonnavigable tributaries and adjacent wetlands, the majority reads the statute more broadly than the 1974 regulations that it seems willing to accept as a correct construction of the Corps' jurisdiction. As I make clear in the text, there is abundant evidence that the Corps was wrong in 1974 and that the Court is wrong today.
9 See, e. g., Natural Resources Defense Council v. Callaway, 392 F. Supp. 685, 686 (DC 1975); United States v. Holland, 373 F. Supp. 665 (MD Fla. 1974).
10 In a 1974 letter to the head of the Corps, the EPA Administrator expressed his disagreement with the Corps' parsimonious view of its own jurisdiction under the CWA. Section 404 of the Federal Water Pollution Control Act Amendments of 1972: Hearings before the Senate Committee on Public Works, 94th Cong., 2d Sess., 349 (1976) (letter dated June 19, 1974, from Russell E. Train, Administrator of EPA, to Lt. Gen. W. C. Gribble, Jr., Chief of Corps of Engineers). The EPA is the agency that generally administers the CWA, except as otherwise provided. 33 U. S. C. § 1251(d); see also 43 Op. Atty. Gen. 197 (1979) ("Congress intended to confer upon the administrator of the [EPA] the final administrative authority" to determine the reach of the term "navigable waters").
11 The House Committee on Government Operations noted the disagreement between the EPA and the Corps over the meaning of "navigable waters" and ultimately expressed its agreement with the EPA's broader reading of the statute. H. R. Rep. No. 93-1396, pp. 23-27 (1974).
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