Thomas, J., concurring
ble waters.” Consistent with that backdrop, the term “navigable waters”—used interchangeably with “waters of the United States” and “navigable waters of the United States”—referred to the waters subject to Congress’ traditional authority over navigable waters until the enactment of the CWA.
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The term “navigable waters” has been in use since the founding to refer to the highways of commerce that were key to the Nation’s development. Great cities like Philadelphia and St. Louis emerged at first as commercial ports along these navigable waters. The Framers recognized that “Providence has in a particular manner blessed” our country with “[a] succession of navigable waters” that “bind [the Nation] together; while the most noble rivers in the world, running at convenient distances, present [Americans] with highways for the easy communication of friendly aids and the mutual transportation and exchange of their various commodities.” The Federalist No. 2, p. 38 (C. Rossiter ed. 1961) (J. Jay). These “vast rivers, stretching far inland” have been of “transcendent importance” to our Nation’s economic expansion by forming “great highways” for commerce. L. Houck, Law of Navigable Rivers xiii (1868).
This Court authoritatively set out the scope of the term “navigable waters of the United States” in the seminal case of The Daniel Ball, 10 Wall. 557 (1871). That case arose under the Steamboat Act of 1838, which prohibited the transportation of goods “upon the bays, lakes, rivers, or other navigable waters of the United States.” §2, 5 Stat.
Co. v. United States, 256 U. S. 113, 120 (1921) (“[I]t is curious and interesting that the importance of these inland waterways, and the inappropriateness of the tidal test in defining our navigable waters, was thus recognized by the Congress of the Confederation [in the Northwest Ordinance] more than 80 years before this court decided The Daniel Ball … and more than 60 years before The Propeller Genesee Chief”).
