PART 329—DEFINITION OF NAVIGABLE WATERS OF THE UNITED STATES Authority: 33 U.S.C. 401 et seq. Source: 51 FR 41251, Nov. 13, 1986, unless otherwise noted. § 329.1 Purpose. This regulation defines the term “navigable waters of the United States” as it is used to define authorities of the Corps of Engineers. It also prescribes the policy, practice and procedure to be used in determining the extent of the jurisdiction of the Corps of Engineers and in answering inquiries concerning “navigable waters of the United States.” This definition does not apply to authorities under the Clean Water Act which definitions are described under 33 CFR parts 323 and 328. § 329.2 Applicability. This regulation is applicable to all Corps of Engineers districts and divisions having civil works responsibilities. § 329.3 General policies. Precise definitions of “navigable waters of the United States” or “navigability” are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. However, the policies and criteria contained in this regulation are in close conformance with the tests used by Federal courts and determinations made under this regulation are considered binding in regard to the activities of the Corps of Engineers. § 329.4 General definition. Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity. § 329.5 General scope of determination. The several factors which must be examined when making a determination whether a waterbody is a navigable water of the United States are discussed in detail below. Generally, the following conditions must be satisfied: (a) Past, present, or potential presence of interstate or foreign commerce; (b) Physical capabilities for use by commerce as in paragraph (a) of this section; and (c) Defined geographic limits of the waterbody. § 329.6 Interstate or foreign commerce. (a) Nature of commerce: type, means, and extent of use. (b) Nature of commerce: interstate and intrastate. § 329.7 Intrastate or interstate nature of waterway. A waterbody may be entirely within a state, yet still be capable of carrying interstate commerce. This is especially clear when it physically connects with a generally acknowledged avenue of interstate commerce, such as the ocean or one of the Great Lakes, and is yet wholly within one state. Nor is it necessary that there be a physically navigable connection across a state boundary. Where a waterbody extends through one or more states, but substantial portions, which are capable of bearing interstate commerce, are located in only one of the states, the entirety of the waterway up to the head (upper limit) of navigation is subject to Federal jurisdiction. § 329.8 Improved or natural conditions of the waterbody. Determinations are not limited to the natural or original condition of the waterbody. Navigability may also be found where artificial aids have been or may be used to make the waterbody suitable for use in navigation. (a) Existing improvements: artificial waterbodies. (2) The artificial waterbody may be a major portion of a river or harbor area or merely a minor backwash, slip, or turning area (see § 329.12(b) of this part). (3) Private ownership of the lands underlying the waterbody, or of the lands through which it runs, does not preclude a finding of navigability. Ownership does become a controlling factor if a privately constructed and operated canal is not used to transport interstate commerce nor used by the public; it is then not considered to be a navigable water of the United States. However, a private waterbody, even though not itself navigable, may so affect the navigable capacity of nearby waters as to nevertheless be subject to certain regulatory authorities. (b) Non-existing improvements, past or potential. § 329.9 Time at which commerce exists or determination is made. (a) Past use. (b) Future or potential use. § 329.10 Existence of obstructions. A stream may be navigable despite the existence of falls, rapids, sand bars, bridges, portages, shifting currents, or similar obstructions. Thus, a waterway in its original condition might have had substantial obstructions which were overcome by frontier boats and/or portages, and nevertheless be a “channel” of commerce, even though boats had to be removed from the water in some stretches, or logs be brought around an obstruction by means of artificial chutes. However, the question is ultimately a matter of degree, and it must be recognized that there is some point beyond which navigability could not be established. § 329.11 Geographic and jurisdictional limits of rivers and lakes. (a) Jurisdiction over entire bed. (1) The “ordinary high water mark” on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas. (2) Ownership of a river or lake bed or of the lands between high and low water marks will vary according to state law; however, private ownership of the underlying lands has no bearing on the existence or extent of the dominant Federal jurisdiction over a navigable waterbody. (b) Upper limit of navigability. § 329.12 Geographic and jurisdictional limits of oceanic and tidal waters. (a) Ocean and coastal waters. (1) Baseline defined. (2) Shoreward limit of jurisdiction. (b) Bays and estuaries. § 329.13 Geographic limits: Shifting boundaries. Permanent changes of the shoreline configuration result in similar alterations of the boundaries of the navigable waters of the United States. Thus, gradual changes which are due to natural causes and are perceptible only over some period of time constitute changes in the bed of a waterbody which also change the shoreline boundaries of the navigable waters of the United States. However, an area will remain “navigable in law,” even though no longer covered with water, whenever the change has occurred suddenly, or was caused by artificial forces intended to produce that change. For example, shifting sand bars within a river or estuary remain part of the navigable water of the United States, regardless that they may be dry at a particular point in time. § 329.14 Determination of navigability. (a) Effect on determinations. (b) Procedures of determination. (c) Suggested format of report of findings: (1) Name of waterbody: (2) Tributary to: (3) Physical characteristics: (i) Type: (river, bay, slough, estuary, etc.) (ii) Length: (iii) Approximate discharge volumes: Maximum, Minimum, Mean: (iv) Fall per mile: (v) Extent of tidal influence: (vi) Range between ordinary high and ordinary low water: (vii) Description of improvements to navigation not listed in paragraph (c)(5) of this section: (4) Nature and location of significant obstructions to navigation in portions of the waterbody used or potentially capable of use in interstate commerce: (5) Authorized projects: (i) Nature, condition and location of any improvements made under projects authorized by Congress: (ii) Description of projects authorized but not constructed: (iii) List of known survey documents or reports describing the waterbody: (6) Past or present interstate commerce: (i) General types, extent, and period in time: (ii) Documentation if necessary: (7) Potential use for interstate commerce, if applicable: (i) If in natural condition: (ii) If improved: (8) Nature of jurisdiction known to have been exercised by Federal agencies if any: (9) State or Federal court decisions relating to navigability of the waterbody, if any: (10) Remarks: (11) Finding of navigability (with date) and recommendation for determination: § 329.15 Inquiries regarding determinations. (a) Findings and determinations should be made whenever a question arises regarding the navigability of a waterbody. Where no determination has been made, a report of findings will be prepared and forwarded to the division engineer, as described above. Inquiries may be answered by an interim reply which indicates that a final agency determination must be made by the division engineer. If a need develops for an emergency determination, district engineers may act in reliance on a finding prepared as in section 329.14 of this part. The report of findings should then be forwarded to the division engineer on an expedited basis. (b) Where determinations have been made by the division engineer, inquiries regarding the navigability This Department, in the administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States, has determined that ___ (River) (Bay) (Lake, etc.) is a navigable water of the United States from ___ to ___. Actions which modify or otherwise affect those waters are subject to the jurisdiction of this Department, whether such actions occur within or outside the navigable areas. (c) Specific inquiries regarding the jurisdiction (2) If not navigable, whether the proposed type of activity may nevertheless so affect the navigable waters of the United States that the assertion of regulatory jurisdiction is deemed necessary. § 329.16 Use and maintenance of lists of determinations. (a) Tabulated lists of final determinations of navigability are to be maintained in each district office, and be updated as necessitated by court decisions, jurisdictional inquiries, or other changed conditions. (b) It should be noted that the lists represent only those waterbodies for which determinations have been made; absence from that list should not be taken as an indication that the waterbody is not navigable. (c) Deletions from the list are not authorized. If a change in status of a waterbody from navigable to non-navigable is deemed necessary, an updated finding should be forwarded to the division engineer; changes are not considered final until a determination has been made by the division engineer.