EP 1165-2-1
30 Jul 99
CHAPTER 12
NAVIGATION
12-1. The Federal Interest. Federal interest in navigation is
established by the Commerce Clause of the Constitution, and subsequent
court decisions, defining the right to regulate navigation and
improvement of the navigable waterways. The navigable waters are
important to the nation as a major means of commercial transportation
and as a part of national defense. The merits of Civil Works projects
for improvement of navigation are currently measured against a single
Federal objective--national economic development--in accord with the
Water Resources Council's (WRC) Principles and Guidelines (P&G).
a. Project Scope. Navigation improvements are directed and
authorized by congressional legislation or other action. Over the
years, these actions have circumscribed the scope of improvements to
include providing waterway channels, anchorages, turning basins, locks
and dams, harbor areas, protective jetties and breakwaters--with
adequate dimensions for safe and efficient movement of vessels. Not
included are facilities such as docks, terminal and transfer
facilities, berthing areas, and local access channels, which have
traditionally been the responsibility of local interests.
b. Project Beneficiaries. Federal improvements must be in the
general public interest and must be accessible and available to all on
equal terms. Although federally-provided general navigation
facilities may serve them, improvements are not made to provide
navigation access to privately-owned facilities (including commercial
marinas) or access to restricted membership yacht clubs and similar
establishments not open to the general public on equal terms, nor are
improvements undertaken to enhance and primarily benefit land
development schemes, waterway cargo transfer and lightering
facilities, or to provide barge fleeting areas.
c. Navigation Servitude. The Corps role in navigation is
heavily influenced by the common law principle of navigation
servitude, essentially the public's right of way to reasonably free
use of all streams and water bodies for navigation. Federal concern
does not extend, however, to providing unrestricted use of unlimited,
obstructionless water areas.
d. Federal Funding. Until passage of the Water Resources
Development Act (WRDA) of 1986 (Public Law 99-662), commercial
navigation improvements were constructed, operated and maintained by
100 percent Federal funding (except for land and relocations
requirements). Such projects authorized by that Act, and
subsequently, may involve local cost sharing. Non-Federal cost
sharing for recreational navigation projects has always been the norm.
(See paragraph 6-4.c)
e. Improvements by Others. There is no general authority
available to the Chief of Engineers whereby a grant or contribution of
Federal funds can be made for navigation features or navigation
benefits of a non-Corps project to be constructed by another agency or
by local interests. The Chief of Engineers cannot reimburse, or in
any way credit, local interests for their expenditures on navigation
improvements which they undertake prior to the approval and adoption
of a Corps project, unless specifically authorized by the Congress to
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