Thomas, J., concurring
of small streams not used habitually as arteries of interstate commerce.” 177 U. S., at 632. The Court observed that applying the Act to wetlands reclamation “would extend the paramount jurisdiction of the United States over all the flowing waters in the States.” Id., at 633. “If such were the necessary construction of the” term “navigable water,” the Court explained, the River and Harbor Act’s “validity might well be questioned.” Ibid. But, the Court declined to interpret the Act to reach the wetlands, because it recognized that the phrase “navigable waters of the United States” encompassed only those waters reached by the traditional channels-of-commerce authority:
“When it is remembered that the source of the power of the general government to act at all in this matter arises out of its power to regulate commerce with foreign countries and among the States, it is obvious that what the Constitution and the acts of Congress have in view is the promotion and protection of commerce in its international and interstate aspect, and a practical construction must be put on these enactments as intended for such large and important purposes.” Ibid.
The Court thus held that the mere use of a wetland by fishermen was not sufficient to make the wetland a navigable water of the United States; it “was not shown that passengers were ever carried through it, or that freight destined to any other State than Louisiana, or, indeed, destined for any market in Louisiana, was ever, much less habitually, carried through it.” Id., at 627.[1]
- ↑ Leovy v. United States also reflected the law’s longstanding hostility to wetlands: “If there is any fact which may be supposed to be known by everybody, and, therefore, by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances.” 177 U. S., at 636. Traditionally, the only time wetlands were the subject of federal legislation was to aid the States in draining them.
