Thomas, J., concurring
SWANCC, 531 U. S., at 174 (reaffirming “the States’ traditional and primary power over land and water use”); Leovy, 177 U. S., at 633 (repudiating an interpretation of the 1899 Act that would render practically every “creek or stream in the entire country” a “navigable water of the United States” and “subject the officers and agents of a State … to fine and imprisonment” for draining a swamp “unless permission [was] first obtained from the Secretary of War”). By contrast, the agencies’ interpretation amounts to a federal police power, exercised in the most aggressive possible way.
Thankfully, applying well-established navigability rules makes this a straightforward case. The “wetlands” on the Sacketts’ property are not “waters of the United States” for several independently sufficient reasons. First, for the reasons set out by the Court, the Sacketts’ wetlands are not “waters” because they lack a continuous surface connection with a traditional navigable water. See ante, at 27. Second, the nonnavigable so-called “tributary” (really, a roadside ditch) across the street from the Sacketts’ property is not a water of the United States because it is not, has never been, and cannot reasonably be made a highway of interstate or foreign commerce. See SWANCC, 531 U. S., at 172. Third, the agencies have not attempted to establish that Priest Lake is a navigable water under the expanded Daniel Ball test. The lake is purely intrastate, and the agencies have not shown that it is a highway of interstate or foreign commerce. Instead, the agencies rely primarily upon interstate tourism and the lake’s attenuated connection to navigable waters. See U. S. Army Corps of Engineers, G. Rayner, Priest Lake Jurisdictional Determination (Feb. 27, 2007); see also Brief for National Association of Home Builders of the United States as Amicus Curiae 21–24. But, this is likely insufficient under the traditional navigability tests to which the CWA pegs jurisdiction. See supra, at 10–13; accord, Tr. of Oral Arg. 119 (EPA counsel conceding that Congress “hasn’t used its full Commerce Clause authority” in
