190
when it enacted § 404(g), Congress believed—and desired— the Corps' jurisdiction to extend beyond just navigable waters, their tributaries, and the wetlands adjacent to each.
In dismissing the significance of § 404(g)(1), the majority quotes out of context language in the very same 1977 Senate Report that I have quoted above. Ante, at 170, n. 6. It is true that the Report states that "[t]he committee amendment does not redefine navigable waters." S. Rep. No. 95- 370, at 75, reprinted in 4 Leg. Hist. of CWA 708 (emphasis added). But the majority fails to point out that the quoted language appears in the course of an explanation of the Senate's refusal to go along with House efforts to narrow the scope of the Corps' CWA jurisdiction to traditionally navigable waters. Thus, the immediately preceding sentence warns that "[t]o limit the jurisdiction of the [FWPCA] with reference to discharges of the pollutants of dredged or fill material would cripple efforts to achieve the act's objectives." 14 Ibid. The Court would do well to heed that warning.
The majority also places great weight, ante, at 171, on our statement in Riverside Bayview that § 404(g) "does not con-14 In any event, to attach significance to the Report's statement that the committee amendments do not "redefine navigable waters," one must first accept the majority's erroneous interpretation of the 1972 Act. But the very Report upon which the majority relies states that "[t]he 1972 [FWPCA] exercised comprehensive jurisdiction over the Nation's waters to control pollution to the fullest constitutional extent." S. Rep. No. 95- 370, at 75, reprinted in 4 Leg. Hist. of CWA 708 (emphases added). Even if the Court's flawed reading of the earlier statute were correct, however, the language to which the Court points does not counsel against finding congressional acquiescence in the Corps' 1975 regulations. Quite the contrary. From the perspective of the 1977 Congress, those regulations constituted the status quo that the proposed amendments sought to alter. Considering the Report's favorable references to the Corps' "continu[ing]" jurisdiction over phase 2 and 3 waters, the language concerning the failure of the amendments to "redefine navigable waters" cuts strongly against the majority's position, which instead completely excises phase 3 waters from the scope of the Act. Ibid.
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