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Show 104 NAVIGABLE WATERS of structures in navigable waters."10 "This power of Congress to regulate commerce is so unfettered that its judgment as to whether a structure is or is not a hindrance is conclusive. Its determination is legislative in character."11 The power of Congress extends not only to keeping clear the channels of interstate navigation by prohibiting or removing actual obstructions, but includes improvement and enlargement of their navigability and determination of the necessity therefor.12 Whether, under local law, the State retains title to the streambed or the riparian owner holds to the thread of the stream or to low watermark, the title-holder's rights are subordinate to the dominant power of the United States in respect of navigation. This dominant power extends to the entire bed of the stream, which includes lands below ordinary high watermark. The power of Congress to create the Mississippi River Commission and to appropriate millions of dollars to build levees and improve the river and its navigable capacity derives from its paramount vested authority to improve the navigability of the river.13 In the course of the long-continuing interstate controversy over waters of the Colorado River, the Court observed that: "The Colorado River is a navigable stream of the United States. The privilege of the states through which it flows and their inhabitants to appropriate and use the water is subject to the paramount power of the United States to control it for the purpose of improving navigation."14 Again, the United States has the power to create an obstruction in a navigable river, such as the Colorado, by the building of a dam for the purpose of improving navigation; and it may perform its functions without conforming to the police regulations of a State.15 Exercise of paramount authority under the commerce clause does not stop at the geographical boundaries of waters that are within the definition of "navigable waters of the United States." It extends to nonnavigable parts of stream systems insofar as such waters are needed to protect the navigable capacity of other parts. "As repeatedly recognized" in the Supreme Court decisions, "the exercise of the granted power of Congress to regulate interstate commerce may be aided by appropriate and needful control of activities and agencies which, though intrastate, affect that commerce."16 This matter is discussed further below (see "Classification of Navigable Waters"). State: Concurrent and Subordinate Power The vesting of paramount control over navigation so far as foreign and interstate commerce is concerned does not destroy the concurrent and 10 311 U.S. 377,405 (1940). 11 Id. at 424. 12 United States v. Chicago, M., St. P. & P. R. R., 312 U.S. 592, 596 (1941). 13Cubbins v. Mississippi River Commission, 241 U.S. 351, 369 (1916). "Arizona v. California, 298 U.S. 558, 569 (1936). ^Arizona v. California, 283 U.S. 423, 451-452 (1931). 16 Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 526 (1941). |