[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: 33CFR329.8]



[Page 468-469]

 

                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.  329.8  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.



[[Page 469]]



    (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.