[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR329.14]



[Page 471]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

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:

    (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: