NAVIGABLE

Capable of being navigated; deep enough and wide enough to afford passage to vessels. In the United States, for the purpose of defining the rights of ownership, some states have adopted the common-law test of flow of the tide, others that of actual navigability. For determining the right of the public to the use of a body of water as a public highway, however, the test in the U.S. is as to whether the water is navigable in fact or not. And waters are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. In truth, the law has a number of different and frequently confusing definitions of "navigable" rivers and lakes, although agreement exists that all tidal areas are considered navigable. For purposes of determining state title to the beds of rivers and lakes, they must have been capable of carrying commerce at the time the state entered the union. "Commerce" for this purpose includes more than boats carrying persons and cargo. The courts have found streams to be "navigable" where they have carried saw logs or shingle bolts. For purposes of some federal regulatory programs, a waterway must have carried, or be capable of carrying, interstate commerce. Other federal regulatory programs, for example, the Federal Power Act, include waterways which could carry interstate commerce with reasonable modifications. And finally, the Clean Water Act (CWA) defines "navigable" waters to include all waters of the United States which may affect or be affected by interstate commerce. Consequently, this encompasses most water bodies in the nation.