Thomas, J., concurring
that federal jurisdiction over “navigable waters” was limited to preventing “interfering with commerce”). Similarly, in Wisconsin v. Illinois, 278 U. S. 367 (1929), this Court interpreted the 1899 Act in light of the constitutional prohibition on Congress “arbitrarily destroy[ing] or impair[ing] the rights of riparian owners by legislation which has no real or substantial relation to the control of navigation or appropriateness to that end.” Id., at 415.[1] The touchstone, thus, remained actual navigation.
Third, §13 of the Act requires some form of surface water connection between a tributary and traditionally navigable waters. See 33 U. S. C. §407 (prohibiting depositing refuse “into any tributary of any navigable water from which the same shall float or be washed into such navigable water”). To be sure, the Refuse Act also prohibits leaving refuse “on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water.” Ibid. But, this prohibition reflects nothing more than Congress’ traditional authority to regulate acts done on land that directly impair the navigability of traditionally navigable waters. See Rio Grande Dam & Irrigation Co., 174 U. S., at 708 (explaining that the Act reaches “any obstruction to the navigable capacity, and anything, wherever done or however
- ↑ Courts had long carefully enforced limits on Congress’ navigation authority in prosecutions brought under the Act of July 7, 1838, ch. 191, 5 Stat. 304 (Steamboat Acts of 1838), which prohibited the transportation of goods “upon the bays, lakes, rivers, or other navigable waters of the United States” by certain steamboats. See, e.g., The Seneca, 27 F. Cas. 1021 (No. 16,251) (DC Wis. 1861); see also The James Morrison, 26 F. Cas. 579, 582 (No. 15,465) (DC Mo. 1846) (holding that the 1838 Act did not reach a ship whose “employment ha[d] no other than a remote connection with ‘commerce or navigation among the several states;’ no more connection than has the farmer who cultivates hemp, tobacco or cotton for a market in other states—the miner who digs and smelts lead—the manufacturer who manufactures for the same market, or the traveler who intends purchasing any of these articles”).
