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Show DETERMINATION OF NAVIGABILITY 113 that influenced members of Congress to enact the measure, or into the adequacy or reasonableness of the authorized structures, these being matters of legislative policy only.S9 In the important case of United States v. Chandler-Dunbar,60 the Supreme Court held that the control of Congress over navigable streams of the country is so unfettered that its judgment as to whether a construction in or over such a river is or is not a hindrance to navigation is conclusive; that such questions are legislative in character; and that when Congress determines that a whole river throughout its entire length is "necessary for the purposes of navigation of said waters and the waters connected therewith," that determination is conclusive. An avenue for congressional determinations of navigability not originally contemplated has been made available as a result of broadening the early definitions of "waters navigable in fact." A much cited definition of such waters by the Supreme Court includes "when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, * * * ." [Emphasis supplied.]61 In the Federal Power Act of 1920, Congress defines "navigable waters" as those "which either in their natural or improved condition * * * are used or suitable for use" in interstate or foreign commerce, "together with such other parts of streams as shall have been authorized by Congress for improvement by the United States or shall have been recom- mended to Congress for such improvement after investigation under its authority."62 [Emphasis supplied.] This recognition by Congress that artificial aids may be needed to make a waterway suitable for commercial navigation was noted and approved by the Supreme Court in the New River decision.63 There, the Court held that to appraise the evidence of navigability solely on natural conditions is erroneous; that availability for navigation must also be considered. Hence, determinations of navigability may rest upon a consideration of improvements needed to make the waterway suitable for commerce, even though the improvements are not actually completed or even authorized. A recent commentator says of this holding that "It would appear from this that if any portion of a river system can be made navigable by reasonable improvements, federal jurisdiction attaches to that portion and also to upper stretches and tributaries, under the Rio Grande doctrine, even though they cannot be made navigable."64 Thus, in authorizing improvements needed to make a stream navigable in fact, Congress determines its navigability and so asserts the paramount 59Arizona v. California, 283 U. S. 423, 452-456 (1931). 60 United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 64-65 (1913). 61 The Daniel Ball, 11 U. S. (10 Wall.) 557, 563 (1871). 62 41 Stat. 1063, § 3,16 U.S.C. § 796(8) (1964). 63 United States v. Appalachian Electric Power Co., 311 U. S. 377, 407-408 (1940). 64 Sato, Sho, "Water Resources-Comments upon the Federal-State Relationship," 48 Cal. L. Rev. 43 (1960), referring to United States v. Rio Grande Dam & In. Co., 174 U. S. 690(1899). 450-486 O - 72 - 10 |