[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: 33CFR329.9]

[Page 459-460]
 
                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. 329.9  Time at which commerce exists or determination is made.

    (a) Past use. A waterbody which was navigable in its natural or 
improved state, or which was susceptible of reasonable improvement (as 
discussed in Sec. 329.8(b) of this part) retains its character as 
``navigable in law'' even though it is not presently used for commerce, 
or is presently incapable of such use because of changed conditions or 
the presence of obstructions. Nor does absence of use because of changed 
economic conditions affect the legal

[[Page 460]]

character of the waterbody. Once having attained the character of 
``navigable in law,'' the Federal authority remains in existence, and 
cannot be abandoned by administrative officers or court action. Nor is 
mere inattention or ambiguous action by Congress an abandonment of 
Federal control. However, express statutory declarations by Congress 
that described portions of a waterbody are non-navigable, or have been 
abandoned, are binding upon the Department of the Army. Each statute 
must be carefully examined, since Congress often reserves the power to 
amend the Act, or assigns special duties of supervision and control to 
the Secretary of the Army or Chief of Engineers.
    (b) Future or potential use. Navigability may also be found in a 
waterbody's susceptibility for use in its ordinary condition or by 
reasonable improvement to transport interstate commerce. This may be 
either in its natural or improved condition, and may thus be existent 
although there has been no actual use to date. Non-use in the past 
therefore does not prevent recognition of the potential for future use.