[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: 33CFR329.8]

[Page 459]
 
                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. 329.8  Improved or natural conditions of the waterbody.

    Determinations are not limited to the natural or original condition 
of the waterbody. Navigability may also be found where artificial aids 
have been or may be used to make the waterbody suitable for use in 
navigation.
    (a) Existing improvements: artificial waterbodies. (1) An artificial 
channel may often constitute a navigable water of the United States, 
even though it has been privately developed and maintained, or passes 
through private property. The test is generally as developed above, that 
is, whether the waterbody is capable of use to transport interstate 
commerce. Canals which connect two navigable waters of the United States 
and which are used for commerce clearly fall within the test, and 
themselves become navigable. A canal open to navigable waters of the 
United States on only one end is itself navigable where it in fact 
supports interstate commerce. A canal or other artificial waterbody that 
is subject to ebb and flow of the tide is also a navigable water of the 
United States.
    (2) The artificial waterbody may be a major portion of a river or 
harbor area or merely a minor backwash, slip, or turning area (see 
Sec. 329.12(b) of this part).
    (3) Private ownership of the lands underlying the waterbody, or of 
the lands through which it runs, does not preclude a finding of 
navigability. Ownership does become a controlling factor if a privately 
constructed and operated canal is not used to transport interstate 
commerce nor used by the public; it is then not considered to be a 
navigable water of the United States. However, a private waterbody, even 
though not itself navigable, may so affect the navigable capacity of 
nearby waters as to nevertheless be subject to certain regulatory 
authorities.
    (b) Non-existing improvements, past or potential. A waterbody may 
also be considered navigable depending on the feasibility of use to 
transport interstate commerce after the construction of whatever 
``reasonable'' improvements may potentially be made. The improvement 
need not exist, be planned, nor even authorized; it is enough that 
potentially they could be made. What is a ``reasonable'' improvement is 
always a matter of degree; there must be a balance between cost and need 
at a time when the improvement would be (or would have been) useful. 
Thus, if an improvement were ``reasonable'' at a time of past use, the 
water was therefore navigable in law from that time forward. The changes 
in engineering practices or the coming of new industries with varying 
classes of freight may affect the type of the improvement; those which 
may be entirely reasonable in a thickly populated, highly developed 
industrial region may have been entirely too costly for the same region 
in the days of the pioneers. The determination of reasonable improvement 
is often similar to the cost analyses presently made in Corps of 
Engineers studies.