Thomas, J., concurring
The Daniel Ball test, with minor variations, marked the limits of federal jurisdiction over waters up to the enactment of the CWA. For instance, in Economy Light & Power Co. v. United States, 256 U. S. 113 (1921), the Court applied The Daniel Ball but expanded it to hold that the River and Harbor Act of 1899 reaches waters that are not currently capable of supporting interstate commerce, though they once did. 256 U. S., at 123–124. And, in United States v. Appalachian Elec. Power Co., 311 U. S. 377 (1940), the Court applied The Daniel Ball to reach waters that could be made navigable with reasonable and feasible improvement. 311 U. S., at 408–409. While these cases expanded the outer boundaries of the term, creating an expanded form of the Daniel Ball test, they reflect the Court’s longstanding view that the statutory term “navigable water” required application of the Daniel Ball test.
2
In the New Deal era, as is well known, this Court adopted a greatly expanded conception of Congress’ commerce authority by permitting Congress to regulate any private intrastate activity that substantially affects interstate commerce, either by itself or when aggregated with many similar activities. See Wickard v. Filburn, 317 U. S. 111, 127–129 (1942); see also United States v. Darby, 312 U. S. 100, 119 (1941). Yet, this expansion did not fundamentally change the Court’s understanding that the term “navigable waters” referred to waters used for interstate commerce. Thus, in Appalachian Elec., the Court continued to apply the concept of navigability to determine the scope of Congress’ Commerce Clause authority to require licenses under
See, e.g., Swamp Land Act of 1850, ch. 84, 9 Stat. 519; see also S. Johnson, Wetlands Law: A Course Source 25–26 (2d ed. 2018). Wetlands preservation only gained traction due, in large part, to advances in firearms technology that made waterfowl hunting feasible. G. Baldassarre & E. Bolen, Waterfowl Ecology and Management 10–14 (1994).
