EP 1165-2-1
30 Jul 99
The navigation servitude is derived from rights recognized under Roman
civil law and English common law for the public to use navigable
waterways without payment, despite the private ownership of the bed or
bank. The navigation servitude was incorporated into United States
law as part of the Commerce Power under the U.S. Constitution. Hence,
in exercise of Congress' power over navigation stemming from the
Commerce clause of the Constitution, no further Federal real estate
interest is required for navigation projects in navigable waters below
the ordinary high water mark. Further, the courts have also generally
held that, under the navigation servitude, claims of consequential
damages arising from Federal development for navigation, with respect
to property values or otherwise, are not compensable. However,
Congress has, to a degree, foregone that advantage through what some
may view as a definition of compensation for Federal real property
acquisitions (Section 111, Public Law 91-611, 31 December 1970)and the
definition of non-Federal sponsor cost-sharing requirements (Title I
of Public Law 99-662, 17 November 1986).
1-4. Sharing of Responsibility. In authorizing Federal participation
in water resource development projects Congress seeks to maintain a
reasonable balance between the powers of the Federal Government and
those retained by the states, local governmental entities, and private
enterprise. Many of the laws which Congress has enacted permit
Federal agencies to exercise latitude in developing plans which must
be specifically authorized by Act of Congress before they may be
carried out. This latitude requires that the responsible Federal
agency recommend to Congress, for each project or program planned, a
division of responsibility between Federal and non-Federal entities.
This division of responsibility should represent a reasonable balance
between what the Federal Government should undertake and what should
be left to non-Federal interests. Arriving at that division requires
careful consideration of indicators of Congressional intent, as well
as the principles and policies spelled out by the legislation
authorizing the agency to propose projects and programs.
1-5. Degrees of Federal Responsibility. Acts of Congress, and
interpretations thereof by the Supreme Court, clearly indicate that
the Federal Government may participate to some degree in all aspects
of water and related land conservation, development, and management.
However, the degree of Federal participation and financing is not the
same for all purposes. Also participation varies between planning,
construction, and operation and maintenance activities. Federal
participation in planning, construction, and operation or maintenance
activities is guided by careful consideration of applicable precedent
and law; the likelihood of widespread and general benefits; local
ability to solve problems; and savings to the Nation that might be
achieved by meeting needs through economies of scale.
1-6. Dynamic Nature of Federal Policy. Legislative enactments
reflect both long- and short-range National priorities and require
progressive adaptation. Rigid policies are undesirable when dealing
with resources which affect the well-being of our people, and which
have broad economic, environmental, and social implications. Changing
technology and public priorities require flexible policies and
informed leadership to meet urgent needs and to assure the welfare of
future generations. Unusual and unique circumstances may present a
valid basis for exceptions to existing policies. However, approval of
departures from established Corps policies is not a delegated
authority. Reporting officers must request special guidance in such
circumstances. The Chief of Engineers will consult with higher
authority when necessary.
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