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Show 120 NAVIGABLE WATERS Non-Federal The relationship under the immediately preceding topic is between actual navigation and other uses of navigable waters under the control of Congress in the exercise of its constitutional power to regulate commerce. In the discussion immediately below, the relationship is between navigation under the dominant power of Congress, and other uses of navigable waters by States or other non-Federal entities, organizations, or individuals. Subject to the dominant power of Congress to regulate navigation, utilization of navigable waters for other beneficial purposes is permissible. Thus, in one of the Colorado River cases, the Supreme Court said that the river is a navigable stream of the United States, and that 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.94 In the River Rouge case, the Court held it to be well settled that in the absence of a controlling local law, the owner of land contiguous to a navigable stream has the rights of a riparian owner, subject to the exercise of the absolute power of Congress over the improvement of navigable rivers.95 The Texas Supreme Court, upon concluding that the watercourse in litigation was a public navigable stream, stated that its waters were held in the State in trust for the public for uses and benefits of which the first and superior right is navigation.96 (See "Water Rights in Navigable Waterways," below.) S. T. Harding, writing in 1936, noted that diversions for irrigation purposes had at times restricted navigation in the summer months on portions of the Sacramento River, California, and that the War Department, acting for Congress, had sometimes served notice that it might be necessary to restrict such diversions in the interest of navigation but had not yet actually required the closing of headgates.97 He went on to say that: While the legal right of navigation to take precedence over other uses is well established, its exercise has been based on questions of public policy, and it is not to be expected that the legal preference of navigation will be enforced to prevent other uses except where navigation represents a greater public interest than such other purposes. Other methods of transportation are generally available, while alternate sources of water supply for irrigation are seldom obtainable. It is not to be expected that the rights of navigation will be asserted in the future to an extent that will restrict irrigation or other developments affecting navigable streams. As noted earlier, it is a Federal, not a local, question, as to whether particular waters are navigable for the purpose of determining the applicability ""Arizona v. California, 298 U. S. 558, 569 (1936). 95 United States v. River Rouge Improvement Co., 269 U. S. 411, 418-419 (1926). 96Motl v. Boyd, 116 Tex. 82, 111, 286 S. W. 458 (1926). "Harding, S. T., "Water Rights for Irrigation," p. 14 (1936). |