Northwest Fishing Reports

33 CFR Part 329
Definition of
Navigable Waters of the US
AUTHORITY: 33 U.S.C. 401 et seq.
Section 329.1 - Purpose
This regulation defines the term "navigable waters of the United States" as it is used to
define authorities of the Corps of Engineers. It also prescribes the policy, practice and
procedure to be used in determining the extent of the jurisdiction of the Corps of
Engineers and in answering inquiries concerning "navigable waters of the United States."
This definition does not apply to authorities under the Clean Water Act which definitions
are described under 33 CFR Parts 323 and 328.
Section 329.2 - Applicability
This regulation is applicable to all Corps of Engineers districts and divisions having civil
works responsibilities.
Section 329.3 - General policies
Precise definitions of "navigable waters of the United States" or "navigability" are
ultimately dependent on judicial interpretation and cannot be made conclusively by
administrative agencies. However, the policies and criteria contained in this regulation
are in close conformance with the tests used by Federal courts and determinations made
under this regulation are considered binding in regard to the activities of the Corps of
Engineers.
Section 329.4 - General definition
Navigable waters of the United States are those waters that are subject to the ebb and
flow of the tide and/or are presently used, or have been used in the past, or may be
susceptible for use to transport interstate or foreign commerce. A determination of
navigability, once made, applies laterally over the entire surface of the waterbody, and is
not extinguished by later actions or events which impede or destroy navigable capacity.
Section 329.5 General scope of determination
The several factors which must be examined when making a determination whether a
waterbody is a navigable water of the United States are discussed in detail below.
Generally, the following conditions must be satisfied:
a. Past, present, or potential presence of interstate or foreign commerce;
b. Physical capabilities for use by commerce as in paragraph (a) of this section; and
c. Defined geographic limits of the waterbody.
Section 329.6 - Interstate or foreign commerce
a. Nature of commerce: type, means, and extent of use. The types of commercial use
of a waterway are extremely varied and will depend on the character of the
region, its products, and the difficulties or dangers of navigation. It is the
waterbody's capability of use by the public for purposes of transportation of
commerce which is the determinative factor, and not the time, extent or manner of
that use. As discussed in Section 329.9 of this Part, it is sufficient to establish the
potential for commercial use at any past, present, or future time. Thus, sufficient
commerce may be shown by historical use of canoes, bateaux, or other frontier
craft, as long as that type of boat was common or well-suited to the place and
period. Similarly, the particular items of commerce may vary widely, depending
again on the region and period. The goods involved might be grain, furs, or other
commerce of the time. Logs are a common example; transportation of logs has
been a substantial and well-recognized commercial use of many navigable waters
of the United States. Note, however, that the mere presence of floating logs will
not of itself make the river "navigable"; the logs must have been related to a
commercial venture. Similarly, the presence of recreational craft may indicate that
a waterbody is capable of bearing some forms of commerce, either presently, in
the future, or at a past point in time.
b. Nature of commerce: interstate and intrastate. Interstate commerce may of course
be existent on an intrastate voyage which occurs only between places within the
same state. It is only necessary that goods may be brought from, or eventually be
destined to go to, another state. (For purposes of this regulation, the term
"interstate commerce" hereinafter includes "foreign commerce" as well.)
Section 329.7 - Intrastate or interstate nature of waterway
A waterbody may be entirely within a state, yet still be capable of carrying interstate
commerce. This is especially clear when it physically connects with a generally
acknowledged avenue of interstate commerce, such as the ocean or one of the Great
Lakes, and is yet wholly within one state. Nor is it necessary that there be a physically
navigable connection across a state boundary. Where a waterbody extends through one or
more states, but substantial portions, which are capable of bearing interstate commerce,
are located in only one of the states, the entirety of the waterway up to the head (upper
limit) of navigation is subject to Federal jurisdiction.
Section 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 paragraph 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.
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.
Section 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

Archaic goobeldegook that is in desperate need of revision to take into account modern day water way recreational use.

Glad you think so. Regardless of how old it is I'd bet the farm no one is going to change anything as we are taking maritime law and it hasn't changed in a couple hundred years.

When is the last time someone hauled his fur trade down a waterway? Ridiculous. Just like the Federal mining and cattle grazing laws that need revised. But that aint gonna happen either. Not until the public gets fed up with the minority of vested interests pulling the strings.

dogfish4pan wrote:When is the last time someone hauled his fur trade down a waterway? Ridiculous. Just like the Federal mining and cattle grazing laws that need revised. But that aint gonna happen either. Not until the public gets fed up with the minority of vested interests pulling the strings.

And this is supposed to mean something? What has fur trade got to do with maritime law or mining or cows? Why would the public be fed up with any of it and what would make you think a vested minority is controlling the maritime laws?

So I've been noticing you posting on quite a few threads and I'm beginning to question whether you are even are interested in fishing. Noting your grammatical patterns and choices of words I can tell you are a rather uneducated malcontent. My next thought is you are probably having tofu and sprouts for dinner, you haven’t bathed in several days and your career choice is to beg for signatures on initiatives for a fixed fee because you are not really a contributing member of society, just a leach. My suggestion is for you to go troll someplace else, this is not a good forum to "occupy".

Like water off of a duck's back....... Just let it roll off........
Minor points or additions to note:
Jones Act has been eroding in it's scope for quite some time. Put simply, Jones Act protects U.S. shipyards and jobs. U.S. built ships were the only ships allowed to make more than one stop at U.S. ports without a foreign port visit in between. Today, some sort of waiver has been given to the cruise ships that serve Alaska. Even though the ships are foreign built and manned, they make multiple stops within the U.S.
American waterways facilitate the transportation of billions of tons of cargo every year. Over time, this will only increase as it is an affordable mode of transportation of goods, whether it be gravel, grain, oil, logs, steel, finished products or people.
I might have to give it to dog on his "fur trade" though. I haven't heard about furs being transported on a waterway since the last time I watched "Jeremiah Johnson" or some such movie. LOL
"Watch out for your topnotch."

added later: The Mississippi alone stands for 425 million tons of annual transported goods.

Yeah, guess I'll keep my "unedukated" comments to myself. You're right, Mark- like "water off a duck's back." Good advise.

dogfish4pan wrote:Yeah, guess I'll keep my "unedukated" comments to myself. You're right, Mark- like "water off a duck's back." Good advise.

Yes you heard me right. Anyone can take a word out of context. Try the rest of the sentence "The goods involved might be grain, furs, or other commerce of the time.". Looks to be pretty timeless statment to me. I see no reason to change it.

Go troll somewhere else.

What's good for the cattle man is good for me. I love to eat beef!
Responsible mining should be encouraged not discouraged by excessive regulation and costs.
Responsible logging should be encouraged as well. Trees grow quite well here in WA. Why is it cheaper to bring them and finished lumber products down from Canada? Excessive regulation! Keeping the environment safe is one thing but it's gone much beyond that. The state's National Forests aren't being logged like they used to be, less habitat(feed) for deer = fewer deer for us to hunt or enjoy while camping.

If changes are made to maritime law, I'd like to see teeth installed to protect U.S. jobs! Till then, no reason to change it as there are much bigger fish to fry.
Please don't interpret my comments of "Like water off of a duck's back" as "I agree with you". I like discussion, I agree to disagree, I don't like personal attacks or insults. I believe they are a waste of energy, create ill feelings and are counter productive. Hang loose bro! Chill Dude! It's all good! Good discussion is what it's all about. LOL "Can't we all just get along?"

My bad for popping off and not following up with any rational for the initial statement. And this is probably not the forum for this sort of discussion. However, navigable waters for commerce unfortunitly also defines water that fishermen can legally gain access via boat. I know, laws in different states may vary, but to the best of my knowledge the rule of the thumb is if you can't float it for commerce, it's private. This seems unreasonable for the sport fishermen who in large part, have foot the bill to keep sport fisheries alive. In my humble opinion, there should be a more equatable law defining public access to water ways other then what the government came up with several hundered years ago to facilitate business trade routes.

As for mining, I've seen what silver mining has done to the fisheries of northern Idaho. The Chain Lakes south of Coeur d' Alene boast some of the best pike fishing west of the Mississippi. But I wouldn't recommend eating them. I've seen warning signs in the boat launch areas warning people not to allow children to play near the banks because of the heavy metals in the soil and that's a hundred miles or so from the source. Anytime a new mining venture is set up, I can't help but wonder how it's going to impact the nearby waterways. I'm not against mining per se, as long as it's not messing up everything else in the process.
Now, if someone want's to curse me out- have at it.

No argument from me on any of that. Mining is a horrible destroyer. I think what you're missing is most states don't have Navigable waters controlled by the Govt. We do because we have a coastline on the ocean that borders on international waters and we have rivers that are used to move huge amounts of product to and from market. The same can't be said by Montana for instance. As a general rule on an undammed river, it's considered navigable if there is tidal influence on the river. Above that it's not private but uncontrolled to a certain extent. So the laws are really there to protect our business interest in shipping our products to market. In Washington very large amounts of fruit and veggies are moved on the river on the way to destinations around the world. In addition to that we move goods to the rest of the US through our ports. To this date I haven’t been in a been in a pushing match with a cargo ship while fishing, they tend to run different places than I care to fish.

Navigability determinations for the 13th disrtict, this is local/USCG. I was surprised at a few that were listed
Link-
http://www.uscg.mil/d13/docs/exhibit11_k1.pdf" onclick="window.open(this.href);return false;

spindog wrote:Navigability determinations for the 13th disrtict, this is local/USCG. I was surprised at a few that were listed
Link-
http://www.uscg.mil/d13/docs/exhibit11_k1.pdf" onclick="window.open(this.href);return false;

Good list! I'm surprised Lake Chelan doesn't qualify as navigable waterway.

Hehehe, I like it. Who would have ever thought? Carrying a "mates card" for years does have an advantage or two....

"Waters that are subject to tidal influence, whether listed or not, are considered navigable for the
purposes of general Coast Guard jurisdiction to the limits of tidal influence. (See Title 33 Code
of Federal Regulations § 2.05-25)."

Bodofish wrote:Hehehe, I like it. Who would have ever thought? Carrying a "mates card" for years does have an advantage or two....

Right On! Current license, or did you let it expire?

Years ago, haven't been running boats for some time. Fixing computers now....