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Show 116 NAVIGABLE WATERS barred from classification as navigable merely because artificial aids are needed before commercial navigation may be undertaken-which Congress recognized in the Federal Power Act of 1920.77 Limits to such improvements are a matter of degree; a balance between cost and need when the improvement would be useful. "The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic."78 The court said that "Although navigability to fix ownership of the river bed or riparian rights is determined ... as of... the admission to statehood . . . navigability, for the purpose of the regulation of commerce, may later arise."79 Some other points made in the New River decision are: it is not necessary for navigability that the use should be continuous. Even nonuse over long periods of years because of changed conditions, competition from railroads or improved highways, or other developments, does not affect the navigability of rivers in the constitutional sense. "When once found to be navigable, a waterway remains so."80 And it is well recognized that the navigability of a waterway may be only of a substantial part of its course. It should be noted that for various purposes some Western States have applied somewhat different tests of navigability. For example, unlike Federal criteria which have emphasized capacity for commercial navigation, some State courts have indicated that navigable waters may include waters that are only navigable for pleasure purposes. This is discussed below under "Uses of Navigable Water-Other Uses-Non-Federal." USES OF NAVIGABLE WATER Navigation Water rights, titles, and related interests are subject to the dominant power of the Federal Government to control the navigability of a navigable stream of the United States. In leading up to a discussion of tests of navigability in the New River case, the United States Supreme Court said that:81 We are dealing here with the sovereign powers of the Union, the Nation's right that its waterways be utilized for the interests of the commerce of the whole country. It is obvious that the uses to which the streams may be put vary from the carriage of ocean liners to the floating out of logs; that the 7741 Stat. 1063, § 3, 16 U.S.C. § 796(8) (1964). 78 311 U.S. 377,408(1940). 79Id. at 408. *°Id. 81 Id. at 405-406. |