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Show Chapter 5. SUBJECTS NOT COVERED IN INDIVIDUAL STATE SUMMARIES The preceding chapters discussing State water law doctrines, procedures, and institutions must be evaluated in light of certain other legal considerations which have not yet been mentioned, or which were referred to only incidentally, and which are not men- tioned at all in the individual State summaries. While there are a great number of related legal problems which could not be treated, no attempt can be made to identify all of them in this brief summary. The items noted below are only a few of the major considerations which qualify, and to some extent control, the operation of State water law systems. 5.1 Navigable and Nonnavigable Waters a. Importance of Distinction Property rights in, and public regulatory authority over, water are qualified to a considerable extent by the classification of water as navigable or nonnavigable. For example, Federal regulatory jurisdic- tion over navigation extends to all waters which are physically capable of supporting commercial navigation in interstate or foreign commerce. These waters are commonly referred to as the waters of the United States. While Congress has constitutional authority to regulate navigation on the navigable stretches of such waterways, it also has authority derived therefrom to exercise a large degree of control over non- navigable tributaries which supply the source of water for the navi- gable stretches. This allows Congress not only to regulate or deny consumptive uses and withdrawals which would adversely affect navi- gation, but also to control such matters as water quality on both the navigable stretches and their nonnavigable tributaries. However, with respect to the control of nonimpounding structures located in or adjacent to waters, the congressional regulatory au- thority has been limited to those waters which are actually navi- gable, and there has been no attempt by Congress to regulate such structures on the nonnavigable tributaries (unless located on Federal lands). The same has been true with respect to excavating, dredg- ing, and filling-Congress controls these activities only on the stretches which are navigable for interstate or foreign commerce, and the respective States exercise jurisdiction over nonnavigable tributaries and waters which are navigable only in intrastate commerce. Another important feature of navigability has to do with the State public trust. This trust extends to all navigable waters, whether navigable interstate or intrastate, and each State regulates the public 63 |