with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.
The Court holds today that, absent compensation, the public may be denied a right of access to “navigable waters of the *181United States” that have been created or enhanced by private means. I find that conclusion neither supported in precedent nor wise in judicial policy, and I dissent.
My disagreement with the Court lies in four areas. First, I believe the Court errs by implicitly rejecting the old and long-established “ebb and flow” test of navigability as a source for the navigational servitude the Government claims. Second, I cannot accept the notion, which I believe to be without foundation in precedent, that the federal “navigational servitude” does not extend to all “navigable waters of the United States.” Third, I reach a different balance of interests on the question whether the exercise of the servitude in favor of public access requires compensation to private interests where private efforts are responsible for creating “navigability in fact.” And finally, I differ on the bearing that state property law has on the questions before us today.
I
The first issue, in my view, is whether Kuapa Pond is “navigable water of the United States,” and, if so, why. The Court begins by asking “whether . . . petitioners’ improvements to Kuapa Pond caused its original character to be so altered that it became subject to an overriding federal navigational servitude.” Ante, at 169. It thus assumes that the only basis for extension of federal authority must have arisen after the pond was “developed” and transformed into a marina. This choice of starting point overlooks the Government’s contention, advanced throughout this litigation, that Kuapa Pond was navigable water in its natural state, long prior to petitioners’ improvements, by virtue of its susceptibility to the ebb and flow of the tide.1
*182The Court concedes that precedent does not disclose a single criterion for identifying “navigable waters.” I read our prior cases to establish three distinct tests: “navigability in fact,” “navigable capacity,” and “ebb and flow” of the tide. Navigability in fact has been used as a test for the scope of the dominant federal interest in navigation since The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457 (1852), and The Daniel Ball, 10 Wall. 557, 563 (1871). The test of navigable capacity is of more recent origin; it hails from United States v. Appalachian Power Co., 311 U. S. 377, 407-408 (1940), where it was used to support assertion of the federal navigational interest over a river nonnavigable in its natural state but capable of being rendered fit for navigation by “reasonable improvements.” Ebb and flow is the oldest test of the three. It was inherited from England, where under common law it was used to define ownership of navigable waters by the Crown. In the early days of the Republic, it was regarded as the exclusive test of federal jurisdiction over the waterways of this country. See The Thomas Jefferson, 10 Wheat. 428, 429 (1825); Waring v. Clarke, 5 How. 441, 463-464 (1847).
Petitioners say that the ebb-and-flow test was abandoned in The Propeller Genesee Chief and The Daniel Ball in favor of navigability in fact. I do not agree with that interpretation. It is based upon language in those opinions suggesting that the test is “arbitrary,” that' it bears no relation to what is “suitable” for federal control, that it “has no application in this country,” and indeed that it is not “any test at all.” See The Propeller Genesee Chief v. Fitzhugh, 12 How., at 454; The Daniel Ball, 10 Wall., at 563. One may acknowledge the language without accepting petitioners’ inference. The Propeller Genesee Chief and The Daniel Ball were concerned with extending federal power to accommodate the stark realities of *183fresh-water commerce. In the former the question was whether admiralty jurisdiction included the Great Lakes. In the latter the question was the scope of federal regulatory power over navigation on a river. In either case it is not surprising that the Court, contemplating the substantial interstate fresh-water commerce on our lakes and rivers, found a test developed in England, an island nation with no analogue to our rivers and lakes, unacceptable as a test for the extent of federal power over these inland waterways. Cf. The Propeller Genesee Chief v. Fitzhugh, 12 How., at 454-457. But the inadequacy of the test for defining the interior reach of federal power over navigation does not mean that the test must be, or must have been, abandoned for determining the breadth of federal power on our coasts.
The ebb-and-flow test is neither arbitrary nor unsuitable when applied in a coastwise setting. The ebb and flow of the tide define the geographical, chemical, and environmental limits of the three oceans and the Gulf that wash our shores. Since those bodies of water in the main are navigable, they should be treated as navigable to the inner reach of their natural limits. Those natural limits encompass a water body such as Kuapa Pond, which is contiguous to Maunalua Bay, and which in its natural state must be regarded as an arm of the sea, subject to its tides and currents as much as the Bay itself.
I take it the Court must concede that, at least for regulatory purposes, the pond in its current condition is “navigable water” because it is now “navigable in fact.” See ante, at 172. I would add that the pond was “navigable water” prior to development of the present marina because it was subject to the ebb and flow of the tide. In view of the importance the Court attaches to the fact of private development,2 *184this alternative basis for navigability carries significant implications.3
II
A more serious parting of ways attends the question whether the navigational servitude extends to all “navigable waters of the United States,” however the latter may be established.4 The Court holds that it does not, at least where navigability is in whole or in part the work of private hands. I disagree.
The Court notes that the tests of navigability I have set forth originated in cases involving questions of federal regulation rather than application of the navigational servitude. Ante, at 171-173. It also notes that Congress has authority to regulate in aid of navigation far beyond the limitations of “navigability.” Ante, at 173-174. From these indisputable propositions the Court concludes that “navigable waters” for these other purposes need not be the same as the “navigable waters” to which the navigational servitude applies.
Preliminarily, it must be recognized that the issue is not whether the navigational servitude runs to every watercourse over which the Federal Government may exercise its regula*185tory power to promote navigation. Regulatory jurisdiction “in aid of” navigation extends beyond the navigational servitude, and indeed beyond navigable water itself. In United States v. Bio Grande Dam & Irrig. Co., 174 U. S. 690, 707-710 (1899), for example, the Court confirmed the Federal Government’s power to enjoin an irrigation project above the limits of navigable water on the Rio Grande River because that project threatened to destroy navigability below. But this is not such a case. Federal authority over Kuapa Pond does not stem solely from an effect on navigable water elsewhere, although this might be a sound alternative basis for regulatory jurisdiction. Instead, the authority arises because the pond itself is navigable water.
Nor does it advance analysis to suggest that we might decide to call certain waters “navigable” for some purposes, but “nonnavigable” for purposes of the navigational servitude. See ante, at 170-171. To my knowledge, no case has ever so held. Although tests of navigability have originated in other contexts, prior cases have never attempted to limit any test of navigability to a single species of federal power. Indeed, often they have referred to “navigable” water as “public” water. See, e. g., The Propeller Genesee Chief v. Pitzhugh, 12 How., at 455, 457; The Daniel Ball, 10 Wall., at 563. In any event, to say that Kuapa Pond is somehow “nonnaviga-ble” for present purposes, and that it is not subject to the navigational servitude for this reason, is merely to substitute one conclusion for another. To sustain its holding today, I believe that the Court must prove the more difficult contention that the navigational servitude does not extend to waters that are clearly navigable and fully subject to use as a highway for interstate commerce.
The Court holds, in essence, that the extent of the servitude does not depend on whether a waterway is navigable under any of the tests, but on whether the navigable waterway is “natural” or privately developed. In view of the fact that *186Kuapa Pond originally was created by natural forces, and that its separation from the Bay has been maintained by the interaction of natural forces and human effort, neither characterization seems particularly apt in this case.5 One could accept the Court’s approach, however, and still find that the servitude extends to Kuapa Pond, by virtue of its status prior to development under the ebb-and-flow test. Nevertheless, I think the Court’s reasoning on this point is flawed. In my view, the power we describe by the term “navigational servitude” extends to the limits of interstate commerce by water; accordingly, I would hold that it is coextensive with the “navigable waters of the United States.”
As the Court recognizes, ante, at 174-175, the navigational servitude symbolizes the dominant federal interest in navigation implanted in the Commerce Clause. See Scranton v. Wheeler, 179 U. S. 141, 159-163 (1900); cf. Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824). To preserve this interest, the National Government has been given the power not only to regulate interstate commerce by water, but also to control the waters themselves, and to maintain them as “common highways, . . . forever free.” See the Act of Aug. 7, 1789, 1 Stat. 50, 52, n. (a) (navigable waters in Northwest Territory). See United States v. Chandler-Dunbar Co., 229 U. S. 53, 62-64 (1913); Gilman v. Philadelphia, 3 Wall. 713, 724-725 (1866). The National Government is guardian of a public right of access to navigable waters of the United States. The navigational servitude is the legal formula by which we recognize the paramount nature of this governmental responsibility.
The Court often has observed the breadth of federal power in this context. In United States v. Twin City Power Co., 350 U. S. 222 (1956), for example, it stated:
“The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. *187That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called 'a dominant servitude’ or ‘a superior navigation easement.’ ” (Citations omitted.) Id., at 224-225.
Perhaps with somewhat different emphasis, the Court also has stated, in cases involving navigable waters, that “the flow of the stream [is] in no sense private property,” United States v. Chandler-Dunbar Co., 229 U. S., at 66, and that the waters themselves “are the public property of the nation.” Oilman v. Philadelphia, 3 Wall., at 725.
The Court in Twin City Power Co. recognized that what is at issue is a matter of power, not of property. The servitude, in order to safeguard the Federal Government’s paramount control over waters used in interstate commerce, limits the power of the States to create conflicting interests based on local law. That control does not depend on the form of the water body or the manner in which it was created, but on the fact of navigability and the corresponding commercial significance the waterway attains. Wherever that commerce can occur, be it Kuapa Pond or Honolulu Harbor, the navigational servitude must extend.
Ill
The conclusion that the navigational servitude extends to privately created or enhanced waters does not entirely dispose of this case. There remains the question whether the Government’s resort to the servitude requires compensation for private investment instrumental in effecting or improving navigability. The Court, of course, concludes that there is no navigational servitude and, accordingly, that assertion of public access constitutes a compensable taking. Because I do not agree with the premise, I cannot conclude that the right to *188compensation for opening the pond to the public is a necessary result. Nevertheless, I think this question requires a balancing of private and public interests.
Ordinarily, “[w]hen the Government exercises [the navigational] servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone.” United States v. Kansas City Ins. Co., 339 U. S. 799, 808 (1950). See also United States v. Willow River Co., 324 U. S. 499, 509-510 (1945); Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82, 87-88 (1913); Gibson v. United States, 166 U. S. 269, 276 (1897). The Court's prior cases usually have involved riparian owners along navigable rivers who claim losses resulting from the raising or lowering of water levels in the navigable stream, or from the construction of artificial aids to navigation, such as dams or locks. In these cases the Court has held that no compensation is required for loss in water power due to impairment of the navigable water’s flow, e. g., United States v. Twin City Power Co., 350 U. S., at 226-227; United States v. Chandler-Dunbar Co., 229 U. S., at 65-66; for loss in “head” resulting from raising the stream, United States v. Willow River Co., 324 U. S., at 507-511; for damage to structures erected between low- and high-water marks, United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592, 595-597 (1941); for loss of access to navigable water caused by necessary improvements, United States v. Commodore Park, Inc., 324 U. S. 386, 390-391 (1945); Scranton v. Wheeler, 179 U. S., at 163; or for loss of value to adjoining land based on potential use in navigational commerce, United States v. Rands, 389 U. S. 121, 124-125 (1967). The Court also has held that no compensation is required when “obstructions,” such as bridges or wharves, are removed or altered to improve navigation, despite their obvious commercial value to those who erected them, and despite the Federal Government’s original willingness to have them built. See, e. g., Greenleaf Lumber Co. v. Garrison, 237 U. S. 251, 256, 258-264 *189(1915); Union Bridge Co. v. United States, 204 U. S. 364, 400 (1907).6
These cases establish a key principle that points the way for decision in the present context. In most of them, the non-compensable loss was related, either directly or indirectly, to the riparian owner’s “access to, and use of, navigable waters.” United States v. Rands, 389 U. S., at 124-125. However that access or use may have been turned to account for personal gain, and no matter how much the riparian owner had invested to enhance the value, the Court held that these rights were *190shared with the public at large. Actions taken to improve their value for the many caused no reimbursable damage to the few who, by the accident of owning contiguous “fast land" previously enjoyed the blessings of the common right in greater measure. See, e. g., United States v. Commodore Park, Inc., 324 U. S., at 390-391. The Court recognized that encroachment on rights inhering separately in the adjoining “fast land,” United States v. Virginia Electric Co., 365 U. S. 624, 628 (1961), or resulting from access to nonnavigable tributaries, see United States v. Cress, 243 U. S. 316 (1917), might form the basis for a valid compensation claim. But the principal distinction was that these compensable values had nothing to do with use of the navigable water.
Application of this principle to the present case should lead to the conclusion that the developers of Kuapa Pond have acted at their own risk and are not entitled to compensation for the public access the Government now asserts. See Union Bridge Co. v. United States, 204 U. S., at 400. The chief value of the pond in its present state obviously is a value of access to navigable water. Development was undertaken to improve and enhance this value, not to improve the value of the pond as some aquatic species of “fast land.” 7 Petitioners do not question the Federal Government’s plenary control over the waters of the Bay, and they have no vested right in access to its open water. Since -the value of the pond and the motive for improving it lie in access to a highway of commerce, I am drawn to the conclusion that the petitioners’ interest in the improved waters of the pond is not subject to compensation. Whatever expectancy petitioners may have had in control over the pond for use as a fishery was surrendered in exchange for *191the advantages of access when they cut a channel into the Bay.
In contrast, the Government’s interest in vindicating a public right of access to the pond is substantial. It is the very interest in maintaining “common highways, . . . forever free.” After today’s decision, it is open to any developer to claim that private improvements to a waterway navigable in interstate commerce have transformed “navigable water of the United States” into private property, at least to the extent that he may charge for access to the portion improved. Such appropriation of navigable waters for private use directly injures the freedom of commerce that the navigational servitude is intended to safeguard. In future cases, of course, the Army Corps of Engineers may alleviate this danger by conditioning permission for connection with other waterways on a right of free public access. But it seems to me that the inevitable result of today’s decision is the introduction of new legal uncertainty in a field where I had thought the “battles long ago,” ante, at 177, had achieved some settled doctrine.
IV
I come, finally, to the question whether Kuapa Pond’s status under state law ought to alter this conclusion drawn from federal law. The Court assumes, without much discussion, that Kuapa Pond is the equivalent of “fast land” for purposes of Hawaii property law. There is, to be sure, support for this assumption, and for present purposes I am prepared to follow the Court in making it. See, e. g., In re Application of Kamakana, 58 Haw. 632, 574 P. 2d 1346 (1978). Nonetheless, I think it clear that local law concerns rights of title and use between citizen and citizen, or between citizen and state, but does not affect the scope or effect of the federal navigational servitude.
The rights in Kuapa fisheries that have been part of Hawaii law since the Great Mahele are not unlike the right to the use of the floor of a bay that was at issue in Lewis Blue Point *192Oyster Co. v. Briggs, 229 U. S. 82 (1913). There the Court found no entitlement to compensation for destruction of an oysterbed in the course of dredging a channel. The Court reasoned: “If the public right of navigation is the dominant right and if, as must be the case, the title of the owner of the bed of navigable waters holds subject absolutely to the public right of navigation, this dominant right must include the right to use the bed of the water for every purpose which is in aid of navigation.” Id., at 87. By similar logic, I do not think Hawaii or any other State is at liberty through local law to defeat the navigational servitude by transforming navigable water into “fast land.” Instead, state-created interests in the waters or beds of such navigable water are secondary to the navigational servitude. Thus, I believe this case should be decided purely as a matter of federal law, in which state law cannot control the scope of federal prerogatives.
For all of the foregoing reasons, the judgment of the Court of Appeals was correct. I therefore dissent.
The District Court found that “the Pacific tides ebbed and flowed over Kuapa Pond in its pre-marina state.” 408 F. Supp. 42, 50 (Haw. 1976). The tide entered through two openings in the barrier beach; it also percolated through the barrier beach itself. Id., at 46. Although *182“[l]arge areas of land at the inland end were completely exposed at low tide,” the entire pond was inundated at high tide. Ibid.
The Court’s opinion also embraces, distressingly for me, an implication that the amount of the private investment somehow influences the legal result. Ante, at 167, 169, and 180. I would think that the consequences *184would be the same whether the developer invested $100 or, as the Court stresses, ante, at 169, “millions of dollars.”
Essentially for the reasons stated by the District Court, 408 F. Supp., at 49-50, I stop short of agreeing with the Government’s contention that the pond has been shown to be navigable under the Appalachian Power test. Although petitioners found it “reasonable” to deepen the pond for private development of the surrounding land, it does not follow that the same improvements would be equally “reasonable” if viewed solely in terms of benefits to navigational commerce.
In addressing this question, we quickly may cast aside any distinction based on the qualifying phrase “of the United States.” As prior eases demonstrate, this phrase is intended to draw the line between waters that may be navigated only intrastate, and those that are subject to navigation in interstate and foreign commerce. See, e. g., United States v. Utah, 283 U. S. 64, 75 (1931); The Daniel Ball, 10 Wall. 557, 563 (1871). Since Kuapa Pond opens onto a bay of the Pacific Ocean, there can be no doubt that it may be navigated in interstate and foreign commerce.
The natural and human contributions to the character of the pond are described by the District Court. See 408 F. Supp., at 46.
There have been eases where compensation was required for private investment in improvement of navigation. Petitioners place particular reliance on Monongahela Navigation Co. v. United States, 148 U. S. 312 (1893). In that case, a private company had constructed locks and dams along the Monongahela River in order to improve its navigability. The company acted under express authority from the State of Pennsylvania, and at the invitation of the United States. Subsequently, Congress authorized the purchase or condemnation of one lock and dam in connection with a project to improve the upper waters of the river. Congress did not authorize compensation for the right to collect tolls. The Court emphasized the Government’s role in encouraging the project, and held that, in consequence, “it does not lie in the power of . . . the United States to say that such lock and dam are an obstruction and wrongfully there, or that the right to compensation for the use of this improvement by the public does not belong to its owner, the Navigation Company.” Id., at 335. Subsequent decisions have limited Monongahela Navigation Co. to this rationale. See Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82, 89 (1913); Greenleaf Lumber Co. v. Garrison, 237 U. S., at 265; cf. United States v. Bands, 389 U. S. 121, 126 (1967).
There is a striking difference between Monongahela Navigation Co. and this case. Although the Army Corps of Engineers originally may have acquiesced in the improvement of Kuapa Pond, it did not invite or actively encourage the development for the benefit of public navigation. The difference is significant. In Monongahela Navigation Co. the United States was required to compensate for the commercial value of navigational improvements it had promoted. In this case, in order to maintain uniformly free navigation, the Government now must compensate for improvements it might not have undertaken if it were at liberty independently to assess the advisability of opening the pond to navigation.
I need not reach the question whether petitioners could have been compensated for the value of the pond as a fishery if the Government had decided, prior to development of Hawaii Kai, either to cut off access to the Bay or to dredge the pond. But cf. United States v. Commodore Park, Inc., 324 U. S. 386, 390 (1945); Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82 (1913).