(a) Jurisdiction over entire bed. Federal regulatory jurisdiction, and powers of improvement for navigation, extend laterally to the entire water surface and bed of a navigable waterbody, which includes all the land and waters below the ordinary high water mark. Jurisdiction thus extends to the edge (as determined above) of all such waterbodies, even though portions of the waterbody may be extremely shallow, or obstructed by shoals, vegetation or other barriers. Marshlands and similar areas are thus considered navigable in law, but only so far as the area is subject to inundation by the ordinary high waters.
(1) The “ordinary high water mark” on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.
(2) Ownership of a river or lake bed or of the lands between high and low water marks will vary according to state law; however, private ownership of the underlying lands has no bearing on the existence or extent of the dominant Federal jurisdiction over a navigable waterbody.
(b) Upper limit of navigability. The character of a river will, at some point along its length, change from navigable to non-navigable. Very often that point will be at a major fall or rapids, or other place where there is a marked decrease in the navigable capacity of the river. The upper limit will therefore often be the same point traditionally recognized as the head of navigation, but may, under some of the tests described above, be at some point yet farther upstream.
Notes of Decisions
Cited in
19
cases (
3 in the last 5 years), 1979–2023 · leading case:
Banks v. United States, 68 Fed. Cl. 524 (Fed. Cl. 2005).
Banks v. United States, 68 Fed. Cl. 524 (Fed. Cl. 2005).
· cites it 5× “33 C.F.R. § 329.11 (a) (2004). This provision defines “[t]he ‘ordinary high water mark’ on non-tidal rivers” as the fine on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving;…”
Parm v. Shumate, 513 F.3d 135 (5th Cir. 2007).
· cites it 2× “” 33 C.F.R. § 329.11 (a); see also United States v.”
Banks v. United States, 71 Fed. Cl. 501 (Fed. Cl. 2006).
· cites it 4× “33 C.F.R. § 329.11 (a)(2) (2005). Because, for purposes of this litigation, the extent of the taking must be determined with reference to defendant’s servitude, plaintiffs’ ownership rights as recognized by state law are irrelevant.”
United States v. Citgo Asphalt Refining Co., 718 F.3d 184 (3rd Cir. 2013).
“§ 403 , and its regulatory jurisdiction “extend[s] laterally to the entire water surface and bed of a navigable wa-terbody, which includes all the land and waters below the ordinary high water mark,” 33 C.F.R. § 329.11 . The National Oceanic and Atmospheric Administration…”
Banks v. United States, 102 Fed. Cl. 115 (Fed. Cl. 2011).
“*190 DX 172 (Nairn OHWM Report) 2 (quoting 33 C.F.R. 329.11(a)(1) (2009)); see generally OHWM Op.”
Frances L. Swanson v. United States of Am., 789 F.2d 1368 (9th Cir. 1986).
“The Army Corps of Engineers regulations provide that federal regulatory jurisdiction and powers of improvement for navigation “extend laterally to the entire water surface and bed of a navigable water-body, which includes all the land and waters below the ordinary high water…”
Pillsbury Co. v. Midland Enter., Inc., 715 F. Supp. 738 (E.D. La. 1989).
“1973) (the Corps' authority over a navigable river extends up to the river’s mean high-water line); 33 C.F.R. § 329.11 (a), interpreted in Vieux Carre Property Owners, Residents & Associates, Inc.”
United States v. Lambert, 915 F. Supp. 797 (S.D.W. Va 1996).
“In limited circumstances, individual permits may be issued after the filling has occurred. These are known as "after the fact” permits.”
Newbold v. Kinder Morgan SNG Operator, 65 F.4th 175 (5th Cir. 2023).
“3d at 143 (quoting 33 C.F.R. § 329.11 (a)) 6 Case: 22-30416 Document: 00516676319 Page: 7 Date Filed: 03/14/2023 No.”
Miller v. United States, 480 F. Supp. 612 (E.D. Mich. 1979).
“33 CFR 329.11(a). . (5) Private parties do not have a right against the United States to control the speed or direction of current in navigable waters and, if they are harmed by changes in the flow of such waters, they have no cause of action against the United States.”
Buttrey v. United States, 573 F. Supp. 283 (E.D. La. 1983).
“(1) The “ordinary high water mark” on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of…”
— 33 C.F.R. § 329.11(a) — 1 case
Miller v. United States, 480 F. Supp. 612 (E.D. Mich. 1979).
“33 CFR 329.11(a). . (5) Private parties do not have a right against the United States to control the speed or direction of current in navigable waters and, if they are harmed by changes in the flow of such waters, they have no cause of action against the United States.”
— 33 C.F.R. § 329.11(a)(1) — 3 cases
Banks v. United States, 102 Fed. Cl. 115 (Fed. Cl. 2011).
“*190 DX 172 (Nairn OHWM Report) 2 (quoting 33 C.F.R. 329.11(a)(1) (2009)); see generally OHWM Op.”
— 33 C.F.R. § 329.11(a)(2) — 1 case
Banks v. United States, 68 Fed. Cl. 524 (Fed. Cl. 2005).
“33 C.F.R. § 329.11 (a) (2004). This provision defines “[t]he ‘ordinary high water mark’ on non-tidal rivers” as the fine on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving;…”
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