Thomas, J., concurring
304. This Court held that the term “navigable” refers to waters that are “navigable in fact,” meaning that “they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The Daniel Ball, 10 Wall., at 563. The Court then explained that navigable waters are “of the United States,” “in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” Ibid.; see also The Montello, 11 Wall. 411, 415 (1871) (“If … the river is not of itself a highway for commerce with other States or foreign countries, or does not form such highway by its connection with other waters, and is only navigable between different places within the State, then it is not a navigable water of the United States, but only a navigable water of the State”). It is this “junction” between waters to “for[m] a continued highway for commerce, both with other States and with foreign countries,” that brings the water “under the direct control of Congress in the exercise of its commercial power.” The Daniel Ball, 10 Wall., at 564. The definition of a “navigable water of the United States” was thus linked directly to the limits on Congress’ commerce authority: A navigable water of the United States was one that was ordinarily used for interstate or foreign commerce.
Wetlands were generally excluded from this definition. In Leovy v. United States, 177 U. S. 621 (1900), for example, the Court employed the Daniel Ball test to hold that the term “navigable waters of the United States,” as used in the 1890 River and Harbor Act, did not “prevent the exercise by the State of Louisiana of its power to reclaim swamp and overflowed lands by regulating and controlling the current
