[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR329.14]

[Page 461-462]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 329--DEFINITION OF NAVIGABLE WATERS OF THE UNITED STATES--Table of Contents
 
Sec. 329.14  Determination of navigability.

    (a) Effect on determinations. Although conclusive determinations of 
navigability can be made only by federal Courts, those made by federal 
agencies are nevertheless accorded substantial weight by the courts. It 
is therefore necessary that when jurisdictional questions arise, 
district personnel carefully investigate those waters which may be 
subject to Federal regulatory jurisdiction under guidelines set out 
above, as the resulting determination may have substantial impact upon a 
judicial body. Official determinations by an agency made in the past can 
be revised or reversed as necessary to reflect changed rules or 
interpretations of the law.
    (b) Procedures of determination. A determination whether a waterbody 
is a navigable water of the United States will be made by the division 
engineer, and will be based on a report of findings prepared at the 
district level in accordance with the criteria set out in this 
regulation. Each report of findings will be prepared by the district 
engineer, accompanied by an opinion of the district counsel, and 
forwarded to the division engineer for final determination. Each report 
of findings will be based substantially on applicable portions of the 
format in paragraph (c) of this section.
    (c) Suggested format of report of findings:
    (1) Name of waterbody:
    (2) Tributary to:
    (3) Physical characteristics:
    (i) Type: (river, bay, slough, estuary, etc.)
    (ii) Length:

[[Page 462]]

    (iii) Approximate discharge volumes: Maximum, Minimum, Mean:
    (iv) Fall per mile:
    (v) Extent of tidal influence:
    (vi) Range between ordinary high and ordinary low water:
    (vii) Description of improvements to navigation not listed in 
paragraph (c)(5) of this section:
    (4) Nature and location of significant obstructions to navigation in 
portions of the waterbody used or potentially capable of use in 
interstate commerce:
    (5) Authorized projects:
    (i) Nature, condition and location of any improvements made under 
projects authorized by Congress:
    (ii) Description of projects authorized but not constructed:
    (iii) List of known survey documents or reports describing the 
waterbody:
    (6) Past or present interstate commerce:
    (i) General types, extent, and period in time:
    (ii) Documentation if necessary:
    (7) Potential use for interstate commerce, if applicable:
    (i) If in natural condition:
    (ii) If improved:
    (8) Nature of jurisdiction known to have been exercised by Federal 
agencies if any:
    (9) State or Federal court decisions relating to navigability of the 
waterbody, if any:
    (10) Remarks:
    (11) Finding of navigability (with date) and recommendation for 
determination: