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Show 64 GENERAL trust over such waters within its own boundary. Where the waters are navigable intrastate only, and are not tributary to interstate tnavigable waters, the State public trust is the only regulatory au- thority that controls use of the water for navigation and other public purposes; and where the waters are navigable in interstate commerce the States still have the same range of regulatory authority for pur- poses of the public trust, but here such authority is subject to the paramount power of Congress to regulate navigation. It is of fundamental importance to recognize the distinction be- tween Federal regulation of interstate navigation and Federal regu- lation of interstate commerce. While both powers are rooted in the commerce clause of the Federal Constitution, regulation of inter- state navigation is dependent upon the waters being physically capable of supporting navigation from one State to another State, or to the international seas; whereas the authority to regulate inter- state commerce is in no way dependent upon the concept of navi- gability, but extends to all activities which directly or indirectly have an affect on interstate commerce. Thus, regulation of interstate com- merce can control and regulate commercial activities on waterways, railroads, or highways, without any inquiry as to whether the waterways are navigable in interstate or intrastate commerce, or whether they are navigable at all. ~b. Distinction The legal distinction between navigable and nonnavigable waters is relatively simple in theory, but very confused in many of the ju- dicial decisions. The simplest way to explain the essence of the test to distinguish navigable waters from nonnavigable waters is to examine the chronological events which led to the current state of the law. (1) ENGLISH COMMON LAW TEST As a small island kingdom, England had very few inland watercourses which were important for public use, and the primary public use of waterways was for navigation and fishing in the tide- waters. Accordingly, England devised a test which said that navi- gable waters were those which were effected by the ebb and flow of the tide, and that all inland waters located above the influence of the tide were nonnavigable. The navigable waters were referred to as public waters, and those waters and the beds and shores thereof were owned by the Crown and Parliament, but such ownership was subject to a trust in favor of the public for purposes of navigation and fishing. The nonnavi- gable waters were classified as private, and the beds, shores, and banks were owned by the landowners who held title to the land ad- jacent to or underlying the watercourse. Since there were no public rights in nonnavigable waters, the only water rights which attached were the traditional common law ri- parian rights. Of course, riparian rights also were recognized in favor of riparian owners who held lands adjacent to tidewaters, but here the riparian rights were subject and subordinate to the public trust for public use of the tidewaters. Thus, private riparians were |