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Show Chapter 4 NAVIGABLE WATERS The general subject of navigation and navigable waters is one of considerable proportions, including important subtopics not germane to the theme of rights to the use of water in the West. However, other subtopics that are directly or indirectly related must be considered herein. For a compact, well-considered statement of important facets of the overall topic of navigation, reference is made to the President's 1950 Water Resources Policy report dealing with water resources law.1 The report shows that the constitutional power of Congress to regulate navigation under the commerce clause comprehends control of navigable waters of the United States and, if necessary, nonnavigable waters connected with them and essential to their navigable capacity, and control over the removal of obstructions to their navigation. It is also shown that subject to the powers conferred upon the Federal Government, the States have proprietary control over navigable waters and their beds within the boundaries of the respective States. Of particular importance with respect to the acquisition and exercise of water rights, the report notes that the protective power of Congress over navigable waters extends to control over the installation of structures across and in such waters and their connecting waters as well-bridges, dams, dikes, causeways, wharves, piers, and other obstructions to their navigable capacity-and to prohibition of any diversion of water that tends to impair or destroy such capacity. CONTROL OVER NAVIGATION AND NAVIGABILITY Paramount authority over navigation and the navigability of waterways useful to interstate and foreign commerce is vested in the United States, acting through the Congress and through Federal administrative agencies pursuant to congressional direction. Subject to this Federal control, or in the absence of it, the States have concurrent jurisdiction within their boundaries. Exercise of Sovereign Power Whether exercised by the United States or by a State, "This power over navigable waters and over navigation is essentially an attribute of sovereignty, and some of its forms find expression in the exercise of the police power."2 1 "The Report of the President's Water Resources Policy Commission," vol. 3, "Water Resources Law," pp. 8-17, 73-125 (1950). 2Gray v. Reclamation Dist. No. 1500, 174 Cal. 622, 637,163 Pac. 1024 (1917). (102) |