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Show 108 NAVIGABLE WATERS riverbeds within the State-Colorado River, and its tributary Green and San Juan Rivers.31 Certain portions of these rivers were found to be navigable- navigable waters of the State of Utah, not of the United States because they were not navigable in interstate or foreign commerce. As stated above under "Navigable Waters of a State", the Court held that a recommendation of the master that the decree contain a proviso authorizing the United States to protect the navigability of any navigable waters of the United States was not necessary, but that under the circumstances the provision was not inappropri- ate. In a controversy decided in 1922 over the ownership of underlying lands, the Supreme Court held that no part of the Red River within Oklahoma was navigable.32 At issue in a decision rendered with respect to the same stream in 1941 was an entirely different question-constitutionality of an Act of Congress33 insofar as it authorized the construction of a reservoir on the Red River in Texas and Oklahoma.34 Here, the Court, without disturbing its previous declaration as to navigability within Oklahoma, noted that navigation of the Red River had been practiced in past years almost as high upstream as the Oklahoma boundary, and currently to a point within Louisiana 122 miles above the river mouth. Among other things, the Court held (1) that the fact that portions of the river are no longer used for commerce does not dilute the power of Congress over them; (2) that clearly, Congress may exercise its control over the nonnavigable stretches of a river in order to preserve or promote commerce on the navigable portions; and (3) that the power of flood control extends to the tributaries of navigable streams. Nonnavigable Tributaries The relation of nonnavigable tributaries to the navigable parts of a stream system was considered in 1899 in a water rights controversy arising in New Mexico.35 The bill was brought by the United States to restrain construction of a dam across the Rio Grande and appropriation of the stream waters for purposes of irrigation, the result of which would seriously obstruct the navigability of the entire river below the dam. The United States Supreme Court reversed the judgment of the Territorial Supreme Court, which had held that the river was not navigable within the limits of the Territory of New Mexico and that the United States therefore had no jurisdiction over the stream. In the Rio Grande Dam case, the high Court held that in the absence of specific authority from Congress, (1) a State cannot by legislation destroy the 31 United States v. Utah, 283 U.S. 64, 75, 90 (1931). 32Oklahoma v. Texas, 258 U.S. 574, 591 (1922). 3352 Stat. 1215 (Act of June 28, 1938). "Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 510, 523, 525 (1941). 35 United States v. Rio Grande Dam & Irr. Co., 174 U.S. 690, 703, 704-708 (1899). |