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Show USES OF NAVIGABLE WATER 117 density of traffic varies equally widely from the busy harbors of the seacoast to the sparsely settled regions of the Western mountains. The tests as to navigability must take these variations into consideration. Other Uses The use of navigable streams is not confined to navigation. Their waters may be put to other uses, subject to the dominant public easement for navigation. And the Federal Government has improved navigable streams for uses other than navigation. Federal*2 In 1950, the United States Supreme Court observed that the custom of invoking the navigation power in authorizing improvements appears to have had its origin when the power of the Federal Government to make internal improvements was contested and in doubt.83 Thus, two decades earlier, in answering Arizona's allegation that the recital in the Boulder Canyon Project Act concerning improvement of navigation on the Colorado River (as well as flood control, river regulation, storage and delivery of water for reclamation of public lands and other uses, and generation of electrical energy)84 was a mere subterfuge, the Court held that as the river was navigable "and the means which the Act provides are not unrelated to the control of navigation," construction and maintenance of the dam and reservoir were clearly within the powers of Congress.85 The fact that purposes other than navigation would also be served could not invalidate this authority, "even if those other purposes would not alone have justified an exercise of Congressional power." That being so, the Court found no occasion to decide whether authority to construct the dam and reservoir might not also have been constitutionally conferred for the other purposes-irrigation of public lands, regulating streamflow and preventing floods, conserving and apportioning waters among the States equitably entitled thereto, or performing international obligations. In the New River decision, however, the United States Supreme Court went far beyond its earlier decisions and, in making positive declarations, effectively discarded previous implications as to the relation of commerce regulation to purposes other than navigation.86 It was held flatly that the constitutional 82 See also the later discussion of this and related subjects in chapter 21. 83 United States v. Gerlach Live Stock Co., 339 U. S. 725, 738, (1950). 8445 Stat. 1057, 43 U.S.C. § 617 (1964). 85Arizona v. California, 283 U.S. 423, 455-458 (1931). With respect to means "not unrelated to the control of navigation," the Court cited United States v. River Rouge Improvement Co., 269 U. S. 411, 419 (1926), wherein it was said that while the right of the United States in navigable waters within the several States was limited to the control thereof for purposes of navigation, Congress in the exercise of this power might adopt any means having some real, substantial, positive relation to the control of navigation. 86 United States v. Appalachian Electric Power Co., 311 U. S. 377, 424-427 (1940). |