page_title: Navigability
section_title: In the United States
hierarchical_section_title: Navigability / Inland water transport systems / In the United States
caption_attribution_description: English: Inland waterway connections
context_page_description: A body of water, such as a river, canal or lake, is navigable if it is deep, wide and slow enough for a vessel to pass. Preferably there are few obstructions such as rocks or trees to avoid. Bridges must have sufficient clearance. High water speed may make a channel unnavigable. Waters may be unnavigable because of ice, particularly in winter. Navigability depends on context: a small river may be navigable by smaller craft, such as a motorboat or a kayak, but unnavigable by a cruise ship. Shallow rivers may be made navigable by the installation of locks that increase and regulate water depth, or by dredging.
context_section_description: What constitutes 'navigable' waters can not be separated from the context in which the question is asked. Numerous federal agencies define jurisdiction based on navigable waters, including admiralty jurisdiction, pollution control, to the licensing of dams, and even property boundaries.  The numerous definitions and jurisdictional statutes have created an array of case law specific to which context the question of navigability arises. Some of the most commonly discussed definitions are listed here.
  Navigable waters, as defined by the US Army Corps of Engineers as codified under 33 CFR 329, are those waters that are subject to the ebb and flow of the tide, and those inland waters that are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce while the waterway is in its ordinary condition at the time of statehood.  Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), approved 3 March 1899, prohibits the unauthorized obstruction of a navigable water of the U.S.  This statute also requires a permit from the U.S. Army Corps of Engineers for any construction in or over any navigable water, or the excavation or discharge of material into such water, or the accomplishment of any other work affecting the course, location, condition, or capacity of such waters.  However, the ACOE recognizes that only the judiciary can make a definitive ruling as to which are navigable waters.33 CFR 329
  For the purposes of transferring property title into public property, the definition of a Navigable waterways closely follows 33 CFR 329.  For the purpose of establishing which river is public and therefore state-owned, what is navigable is a constitutional question defined by Federal case law. (See PPL Montana v Montana (2012).) If a river was considered navigable at the time of statehood, the land below the navigable water was conveyed to the state as part of the transportation network in order to facilitate commerce.  Most states retained title to these navigable rivers in trust for the public.  Some states divested themselves of title to the land below navigable rivers, but a federal navigable servitude remains if the river is a navigable waterway.   Title to the lands submerged by smaller streams are considered part of the property through which the water flows and there is no 'public right' to enter upon private property based on the mere presence of water.
  The scope of the Federal Energy Regulatory Commission (FERC) authority was granted under the Federal Power Act, 1941 (16 U.S.C 791).   Such authority is based on congressional authority to regulate commerce; it is not based exclusively on title to the riverbed [16 U.S.C. 796(8)] or even navigability.  Therefore, FERC's permitting authority extends to the flow from non-navigable tributaries in order to protect commerce downstream, [US v. Rio Grande Irrigation, 174 U.S. 690, 708 (1899)], [Oklahoma v. Atkinson, 313 US 508, 525].
  Also, the Clean Water Act has introduced the terms "traditional navigable waters," and "waters of the United States" to define the scope of Federal jurisdiction under the Clean Water Act.  Here, "Waters of the United States"  include not only navigable waters, but also tributaries of navigable waters and nearby wetlands with "a significant nexus to navigable waters"; both are covered under the Clean Water Act.  Therefore, the Clean Water Act establishes Federal jurisdiction beyond "navigable waters" extending a more limited federal jurisdiction under the Act over private property which may at times be submerged by waters.  Because jurisdiction under the Clean Water Act extends beyond public property, the broader definitions of "traditional navigable" and "significant nexus" used to establish the scope of authority under the Act are still ambiguously defined and therefore open to judicial interpretation as indicated in two U.S. Supreme Court decisions: "Carabell v. United States" and "Rapanos v. United States".  However, because authority under the Act is limited to protecting only navigabl
caption: Inland Waterway Connection
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