(a) Effect on determinations. Although conclusive determinations of navigability can be made only by federal Courts, those made by federal agencies are nevertheless accorded substantial weight by the courts. It is therefore necessary that when jurisdictional questions arise, district personnel carefully investigate those waters which may be subject to Federal regulatory jurisdiction under guidelines set out above, as the resulting determination may have substantial impact upon a judicial body. Official determinations by an agency made in the past can be revised or reversed as necessary to reflect changed rules or interpretations of the law.
(b) Procedures of determination. A determination whether a waterbody is a navigable water of the United States will be made by the division engineer, and will be based on a report of findings prepared at the district level in accordance with the criteria set out in this regulation. Each report of findings will be prepared by the district engineer, accompanied by an opinion of the district counsel, and forwarded to the division engineer for final determination. Each report of findings will be based substantially on applicable portions of the format in paragraph (c) of this section.
(c) Suggested format of report of findings:
(1) Name of waterbody:
(2) Tributary to:
(3) Physical characteristics:
(i) Type: (river, bay, slough, estuary, etc.)
(ii) Length:
(iii) Approximate discharge volumes: Maximum, Minimum, Mean:
(iv) Fall per mile:
(v) Extent of tidal influence:
(vi) Range between ordinary high and ordinary low water:
(vii) Description of improvements to navigation not listed in paragraph (c)(5) of this section:
(4) Nature and location of significant obstructions to navigation in portions of the waterbody used or potentially capable of use in interstate commerce:
(5) Authorized projects:
(i) Nature, condition and location of any improvements made under projects authorized by Congress:
(ii) Description of projects authorized but not constructed:
(iii) List of known survey documents or reports describing the waterbody:
(6) Past or present interstate commerce:
(i) General types, extent, and period in time:
(ii) Documentation if necessary:
(7) Potential use for interstate commerce, if applicable:
(i) If in natural condition:
(ii) If improved:
(8) Nature of jurisdiction known to have been exercised by Federal agencies if any:
(9) State or Federal court decisions relating to navigability of the waterbody, if any:
(10) Remarks:
(11) Finding of navigability (with date) and recommendation for determination:
Notes of Decisions
United States v. Marshall C. Sasser, 967 F.2d 993 (4th Cir. 1992).
· cites it 2× “Sasser bases this argument on 33 C.F.R. § 329.14 , which requires the Corps to investigate questions of jurisdiction and navigability by following certain procedures.”
United States v. Schmitt, 734 F. Supp. 1035 (E.D.N.Y 1990).
“” In addition, 33 C.F.R. § 329.14 (a) provides that “[although conclusive determinations of navigability can be made only by federal courts, those made by federal agencies are nevertheless accorded substantial weight by the courts.”
United States v. Harrell, 926 F.2d 1036 (11th Cir. 1991).
· cites it 2× “38 Finally, appellants argue that the July 30,1984 letter from the Corps of Engineers to Appellant Gollatte, as a determination of navigability, is entitled to “substantial weight” pursuant to 33 C.F.R. § 329.14 . 39 However, as the district court noted, this letter “falls far…”
Loving v. Alexander, 548 F. Supp. 1079 (W.D. Va. 1982).
“On February 23, 1978, the Corps issued a “Determination of Navigability — Jackson River, Virginia” under the authority of 33 C.F.R. 329.14(b). 2 This determination was based on the study prepared by Knapp and states that, under the standards set out in 33 C.”
Reynolds v. Bradley, 644 F. Supp. 42 (N.D.N.Y. 1986).
“at 1039 , “conclusive determinations of navigability can be made only by Federal Courts____” 33 C.F.R. § 329.14 (a) (1985). Moreover, administrative or regulatory definitions of navigability serve an entirely different purpose than judicial definitions of navigability.”
United States v. Abbott, 87 F.4th 616 (5th Cir. 2023).
“8 Case: 23-50632 Document: 00516986695 Page: 9 Date Filed: 12/01/2023 No.”
United States v. Fane Lozman (11th Cir. 2025).
“” 33 C.F.R. § 329.14 (a). Once a determination of navigabil- ity is made, it “‘applies laterally over the entire surface of the wa- terbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.”
City of Murfreesboro v. Pierce Hardy Real Est., Inc. (Tenn. Ct. App. 2000).
· cites it 2× “33 C.F.R. § 329.14 (emphasis added). Because a determination by the Corps of Engineers that a particular waterway is a “navigable water of the United States” is not binding on a federal court called upon to make that legal decision, such agency determination cannot be binding on…”
Gollatte v. Harrell, 731 F. Supp. 453 (S.D. Ala. 1989).
· cites it 2× “” This letter falls far short of a determination of navigability required by 33 C.F.R. § 329.14 and accordingly requires this Court to make a ruling on the question of navigability of Lewis Creek without benefit of the “substantial weight” to be given a properly founded Corps…”
— 33 C.F.R. § 329.14(b) — 1 case
Loving v. Alexander, 548 F. Supp. 1079 (W.D. Va. 1982).
“On February 23, 1978, the Corps issued a “Determination of Navigability — Jackson River, Virginia” under the authority of 33 C.F.R. 329.14(b). 2 This determination was based on the study prepared by Knapp and states that, under the standards set out in 33 C.”
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