[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR329.9]

[Page 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 
 
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 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.