33 C.F.R. § 329.3
General policies
Precise definitions of “navigable waters of the United States” or “navigability” are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. However, the policies and criteria contained in this regulation are in close conformance with the tests used by Federal courts and determinations made under this regulation are considered binding in regard to the activities of the Corps of Engineers.
Notes of Decisions
Cited in 15
cases (1 in the last 5 years), 1978–2023 · leading case: Menominee Indian Tribe of Wis v. EPA, 947 F.3d 1065 (7th Cir. 2020).
Menominee Indian Tribe of Wis v. EPA, 947 F.3d 1065 (7th Cir. 2020). “But the administrative law judge has not yet reached a de- cision on the merits, and after that the Tribe may turn to the state court for relief.”
Deltona Corp. v. United States, 228 Ct. Cl. 476 (Ct. Cl. 1981). “” 33 C.F.R. § 329.3 (1980). The Supreme Court has described Section 10 as a type of "general proscription” or "ban,” the intent being "to benefit the public at large by empowering the federal government to exercise its authority over interstate commerce with respect to…”
1902 Atl. Ltd. v. Hudson, 574 F. Supp. 1381 (E.D. Va. 1983). “The Corps’ regulations specifically recognize that courts will be required to draw lines in this area: “Precise definition of ‘navigable waters' and ‘navigability’ are ultimately dependent on judicial determination, and cannot be made conclusively by administrative agencies.”
United States v. Schmitt, 734 F. Supp. 1035 (E.D.N.Y 1990). “Specifically, 33 C.F.R. § 329.3 , entitled “General policies,” states that: “[p]recise definitions of ‘navigable waters of the United States’ or ‘navigability’ are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies.”
United States v. Oak Beach Inn Corp., 744 F. Supp. 439 (S.D.N.Y. 1990). “” 33 C.F.R. § 329.3 . 10 .As noted above, Ninth Circuit case law holds that the Government need not demonstrate this element if it shows that the vessels are a "structure” by virtue of being "permanently moored.”
Minnehaha Creek Watershed Dist. v. Hoffman, 449 F. Supp. 876 (D. Minnesota 1978). “(See 33 C.F.R. § 329.3 .) The court will examine the potential basis for the exercise of regulatory jurisdiction under the Rivers and Harbors Act of 1899 (RHA) and the Federal Water Pollution Control Act Amendments of 1972 (FWPCA) individually- A.”
Slagle v. United States Ex Rel. Baldwin, 809 F. Supp. 704 (D. Minnesota 1992). “Slagle cites 33 C.F.R. § 329.3 for the proposition that the ultimate definition of "navigable waters" rests with the courts.”
Buttrey v. United States, 573 F. Supp. 283 (E.D. La. 1983). “However, the policies and criteria contained in this regulation are in close conformance with the tests used by the Federal Courts and determinations made under this regulation are considered binding in regard to the activities of the Corps of Engineers.”
United States v. Harrell, 926 F.2d 1036 (11th Cir. 1991). “33 C.F.R. § 329.3 . . 389 U.S. 121, 123 , 88 S.”
United States v. Sasser, 771 F. Supp. 720 (D.S.C. 1991). “As best stated in 33 C.F.R. § 329.3 , “[pjrecise definitions of ‘navigable waters of the United States’ or ‘navigability’ are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies.”
Stewart v. US Ex Rel. Dept. of Agric., 639 F. Supp. 2d 1190 (D. Or. 2009). “, 33 C.F.R. § 329.3 (providing that the Corps of Engineers navigability determinations are binding on the Corps but ultimately dependent on judicial interpretation).”
United States v. Abbott, 87 F.4th 616 (5th Cir. 2023). “33 C.F.R. § 329.3 . Although the determinations made by the Corps and the Coast Guard certainly bolster a consensus in the evidence of historical navigability.”
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