Public Rights in Water: Federal Navigation Servitude

Scholarly / Law Review Articles:

1. Benjamin H. Longstreth, Protecting 'the Wastes of the Foreshore': The Federal Navigational Servitude and its Origins in State Public Trust Doctrine, 102 Colum. L. R. 471 (2002). 
2. Genevieve Pisarski, Testing the Limits of the Federal Navigational Servitude, 2 Ocean & Coastal L.J. 313 (1997). 
3. Alan T. Ackerman and Noah Eliezer Yanich, Just and Unjust Compensation: The Future of the Navigational Servitude in Condemnation Cases, 34 U. Mich. J.L. Reform 573 (2002). 
4. Eva Morreale, Federal Power in Western Waters: The Navigation Power and the Rule of No Compensation, 3 Nat. Resources J. 1 (1963).  

Article I, § 8, United States Constitution:

• "The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes." 
• Because Congress has the authority to regulate interstate commerce, it has the authority to regulate waterways. 
• This authority is dominant over state and private property interests in navigable waters and lands beneath those waters.  

Limiting Federal Authority:

• Federal authority that relies on the navigational servitude is limited to activities related to maintaining and improving navigation.   

Determining Which Waterways Are Subject to the Federal Navigational Doctrine:

1. A waterway that is navigable in fact in its natural state is subject to a national servitude by the federal government. 
2. Navigable-in-Fact: A waterway is 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.  

 Key Points: 

• Defined: The federal navigational servitude is an aspect of the sovereignty of the United States, grounded in the Federal Government to regulate commerce, entitling the government to exert a dominant servitude in all lands below the ordinary high water mark of navigable waters. 

• A navigational servitude relieves the Federal Government of the obligation to pay compensation for acts interfering with the ownership of riparian, littoral, or submerged lands.    

• The federal government's dominant servitude may be asserted as a defense to a regulatory takings claim if there is a showing that the regulatory imposition was for a purpose related to navigation.  

• The navigational servitude does not extend beyond the high water mark.

• Federal navigational servitude does not create a right to fish on private riparian land.