33 C.F.R. § 329.6

Interstate or foreign commerce

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(a) Nature of commerce: type, means, and extent of use. The types of commercial use of a waterway are extremely varied and will depend on the character of the region, its products, and the difficulties or dangers of navigation. It is the waterbody's capability of use by the public for purposes of transportation of commerce which is the determinative factor, and not the time, extent or manner of that use. As discussed in § 329.9 of this part, it is sufficient to establish the potential for commercial use at any past, present, or future time. Thus, sufficient commerce may be shown by historical use of canoes, bateaux, or other frontier craft, as long as that type of boat was common or well-suited to the place and period. Similarly, the particular items of commerce may vary widely, depending again on the region and period. The goods involved might be grain, furs, or other commerce of the time. Logs are a common example; transportation of logs has been a substantial and well-recognized commercial use of many navigable waters of the United States. Note, however, that the mere presence of floating logs will not of itself make the river “navigable”; the logs must have been related to a commercial venture. Similarly, the presence of recreational craft may indicate that a waterbody is capable of bearing some forms of commerce, either presently, in the future, or at a past point in time.

(b) Nature of commerce: interstate and intrastate. Interstate commerce may of course be existent on an intrastate voyage which occurs only between places within the same state. It is only necessary that goods may be brought from, or eventually be destined to go to, another state. (For purposes of this regulation, the term “interstate commerce” hereinafter includes “foreign commerce” as well.)

Notes of Decisions

Cited in 4 cases, 1992–2003 · leading case: United States v. Theodore Angell, 292 F.3d 333 (2d Cir. 2002).

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United States v. Theodore Angell, 292 F.3d 333 (2d Cir. 2002). “33 C.F.R. § 329.6 (a) (2001) (“[T]he presence of recreational craft may indicate that a waterbody is capable of bearing some forms of commerce, either presently, in the future, or at a past point in time.”

Palm Beach Isles Assocs. v. United States, 58 Fed. Cl. 657 (Fed. Cl. 2003). · cites it 4× “33 C.F.R. § 329.6 (a) (1989); see also Atlanta Sch.”

Atlanta Sch. of Kayaking, Inc. v. Douglasville-Douglas Cnty. Water & Sewer Auth., 981 F. Supp. 1469 (N.D. Ga. 1997). “33 C.F.R. § 329.6 (a). In this case, plaintiffs have a substantial likelihood of success on the finding that the Dog River is navigable under federal law because of the ability of kayaks and canoes to travel down the river 10 and for Sparks and the School of Kayaking to travel…”

New York ex rel. New York State Dep't of Env't Conservation v. Fed. Energy Regulatory Comm'n, 954 F.2d 56 (2d Cir. 1992). “There was also undisputed evidence that canoeists travel the river, with occasional portages, from beyond the east end of the Salmon Reservoir to Port Ontario at the mouth of the river.”

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