EP 1165-2-1
30 Jul 99
do so (project proposals will not recommend such reimbursement).
There are, however, certain general authorities under which local
interests may receive reimbursement for work they accomplish on a
Corps project after it is authorized (See paragraphs 8-6 and 12-26).
f. Federal Assumption of Operation and Maintenance (O&M).
Specific authorization by Congress is required to assume Federal
maintenance of channel improvements provided by others which extend
beyond the limits of the authorized project. Section 204(f) of WRDA
1986, as amended, as implemented by ER 1165-2-124, provides the basis
for the Federal assumption of maintenance of navigation (harbor)
projects constructed by non-Federal interests. Section 204(f)
generally provides that a non-Federal project must be approved by the
Secretary of the Army for Federal assumption of maintenance prior to
construction. In view of the provisions of Section 204(f) and in
recognition of budget constraints, the Corps of Engineers will no
longer seek authorization for Federal maintenance of existing non-
Federal navigation projects. Only assumption of maintenance under the
provision of Section 204(f) will be considered. This policy does not
apply to the study of improvements (deepening or widening) of existing
non-Federal projects and recommendations for authorization for
construction of these improvements with subsequent Federal
maintenance.
12-2. Navigable Waters of the United States. Federal jurisdiction
over navigation extends to all navigable waters of the United States
(U.S.). The definition of "navigable waters of the U.S." is derived
from a history of judicial decisions and interpretations, along with
administrative determinations of the Corps and legislative actions
which may declare certain specific waters to be non-navigable (33
U.S.C., Chapter I). The Corps defines navigable waters as "...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. Corps
jurisdiction is limited to lands below the ordinary high water mark in
non-tidal waters and land below the mean high tide line in tidal
waters. In non-tidal waters the extent of this jurisdiction is also
limited horizontally to the bed and bank of the navigable stream. 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." (33
CFR 329) The jurisdictional limits of Corps interest with respect to
navigation and with respect to other Corps regulatory responsibilities
are not consistent. (See paragraph 22-4)
12-3. National Economic Development (NED) Benefit Evaluation,
Navigation. Chapter II of the P&G contains NED benefit evaluation
procedures for specific types of projects. The relevant procedures
for navigation projects are: Section VI, Inland Navigation; Section
VII, Deep-Draft Navigation; Section VIII, Recreation; and, Section IX,
Commercial Fishing. The economic principles, legislation, and
policies to be considered in all navigation studies are summarized
below.
a. Priority Outputs. In considering funding for studies and
project implementation, commercial navigation benefits are a priority
output, while recreation navigation benefits are not. By Act of 10
February 1932 (47 Stat. 42, 33 U.S.C. 541), Congress expanded the
definition of waterborne commerce to "include the use of waterways by
12-2
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