Water rights laws in the nineteen Western States : Volume 3

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18 FEDERALSTATE RELATIONS navigable capcity of any of the waters of the United States In the Federal Water Pollution Control Act Amendments of 1972 discussed earlier under Exercise of the Commerce Power-Enironmental Protcction Contimedy mavigable waters of the United Siats is wed 10 dofin the scops and exteat of the segulatory powersihe Federal Gosermmen Precise defnitionsof aavisabl waters or navigailty are uldmately depsndent on judicist intesprtation and cannot be made conclusively by sdministrativ sgencis However the policies ad criers tainedohis sectoni close conformance with the 1stsused by the Federat contts and dexerminations made under this secton are considered binding in regard the activtiesof the Corpsof Enincers General defiition Navisable waters of the United Statesthose waters hich ke presently or have heen in the past or may bethe futare suseeptbl for use or purposes of interstate or foreign commerce determination of navigabily oncs made spplies atenlly over the sniire surace of the water body andnot tinguished by late actions of events which impede or destioy navigable capaity 35 CER 52096006 and 1974 More specifc crieria see sl included in 5209 260 aso 209 12000 1974 The legidation applicable 1o the Coust Guard deseibed in note 14 supro refees simply 10 the igh sas and waters subjetthe ursditionthe Urited Stucs 14 US 1970 This bhas beea construed by fhe Coust Gusrd 10 include navigable waters of the Unitd States 331-R 10-10 1973 Subpart 210 inludes gencaal descriptionsof navigable wators subjec 1o Coust Guard jurisdicton 933 US 403 1970 Secion 403 subscquently refers 1o muisable iver or ot water of the United States and navigabl water of the Urited Sates In tecent case Federal ot of appeals held that mavisble water of the United States within the meaning of the Rivers and Harbors Act must be consirac in line wilh the icerprstaionThe Dasil Bl quotd at note 71 supre as contemplting suchbody of water forming4 continuous highvay over which commereeof iy be camicd on with other sates or forign countris by Vater and it showing navigabilty only upa connecing ntrstae rilhead was nsuiient Sel CoSouthern Pac Transp Co SOU Tied 1156 1169 10t Ci 1974 The st sid iner af Alihoughdefintion of wavigabilty down in The Danie Bl as Subscquenly been modifed and clariied itns casss it defnition of migable water of the United Sttes insofarI equizes navigable interstae inksge by watcr appearscemain unchansed citin and discusing cases 41t 1167 We relize hat the comsiuction of maigable watertho United Ststes ade in The Dariel Bll and The Montllo 87 US 20 Wall 430 1874 mayviewedwoling statute depending on the admitolty power while the Rivcrs and Harbors Actexercise of powes unde the commeree clause Se United Statesv Crow Pope Land Entepriss Tnc 340 Fed Supp 25 D Ga 1973 appesl disised 474 Fed 24 200 Sth Cir 1973 Neverthales The Daniel sl wasik decision and it intcspreation of navigable water of the United States adhered in The Montclo and Escanaba Co Chicsgo 107S 678 1882 was well st the time of the cractment of the 1899 statute was the interprtation ven to mizable water Of the United States used in the 1890 Rivers Harbors Act prodecesior of he 1899 Act sec 21 Op Aty Gen 430 43233 1596 When Congroswordsstatute without definimg them and those words have jicilly ettled wcaning itpresumed that Congress intended them 1o have that aning in the stawte ciing enses We may assume dhat dhe Congress was avare of these deciions and of the