The term "navigable waters of the United States" might sound straightforward, but as courts continue to show, its meaning can shift significantly depending on the legal lens being applied. In maritime law, environmental regulation, and even criminal cases, the same phrase can carry very different weight. In this second installment, we'll take a closer look at how recent court decisions have interpreted navigability.
In Part One, we considered a tort case from the federal Fourth Circuit Court of Appeals that involved damage to a submerged electric cable in a residential inlet. In deciding whether this was a federal case, the Court discussed the "navigable in fact" test from the case of The Daniel Ball as well as the "locality plus" test for federal admiralty (maritime) jurisdiction.
We concluded that in the case of Eli Cove, the Fourth Circuit took a broad view in defining "navigable waters of the United States." In finding that Eli Cove was navigable and that the Court had admiralty jurisdiction, the Court noted that even though Eli Cove was a "residential inlet," it was tidal waters of the United States and was susceptible (capable) of commercial use in keeping with the navigable in fact test. It was joined by other waters such that you could push off from a residential dock in the Cove and end up in the Atlantic Ocean.
In Part Two, we will very briefly review recent jurisprudence considering the concept of "navigable waters of the United States."
The issue of identifying navigable waters can be confusing because the inquiry arises in several different contexts. The recent U.S. Supreme Court case of Sackett et ux. v. Environmental Protection Agency, et al. (May 25, 2023) reflects a many decades-old controversy regarding regulation and enforcement by the Environmental Protection Agency (EPA) and the Army Corps. of Engineers of "waters of the United States (WOTUS)" under the Clean Water Act (CWA). The Act, passed in 1972, regulates water pollution. Its geographical reach is "waters of the United States."
A problem arose when the Sacketts began backfilling a lot in preparation for building a home. The EPA took the position that the water on the Sackett's lot was WOTUS wetlands and ordered them to restore the site, threatening fines of over $40,000 per day. It seems that the Agency picked on the wrong people.
This case involved a case of regulatory overreach. Justice Alito began his majority opinion by wondering if the term WOTUS "… encompass(ed) any backyard that is soggy enough for some minimum period of time? Does it reach 'mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, (or) playa lakes'"? "How about ditches, swimming pools, and puddles?"
In ruling against the Agency, the Court summed up the CWA's WOTUS as extending to "… only wetlands that are 'as a practical matter indistinguishable from waters of the United States. … first, i.e., a relatively permanent body of water connected to traditional interstate navigable waters; and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetlands begins.'"
This example helps highlight how terms like "navigable waters of the United States" and "waters of the United States" can appear in a variety of legal contexts. Many of these contexts differ significantly from the "navigable in fact" test used to determine federal maritime jurisdiction (including cases arising under the Jones Act as well as for coverage under the Longshore and Harbor Workers' Compensation Act).
Here's another example. In United States of America v. Greg Abbott, in his capacity as Governor of the State of Texas; State of Texas (5th Cir., December 1, 2023), the federal Fifth Circuit Court of Appeals, in a since vacated decision, ruled on whether a stretch of the Rio Grande River near Eagle Pass was "navigable" under the Rivers and Harbors Appropriation Act of 1899. As part of the discussion, the Court seemed to accept that navigability in this context included waters that were once navigable but are no longer so. This is not part of the "navigable in fact" test we use for federal tort jurisdiction, which considers current and future use.
This case will be scheduled for rehearing en banc.
Once again, our context is federal maritime jurisdiction under the Jones Act and the Longshore and Harbor Workers' Compensation Act. Neither statute defines "navigable waters of the United States." As noted above, our starting point is the U.S. Supreme Court's language in The Daniel Ball. Waters are navigable "… when they form in their ordinary condition by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary mode in which such commerce is conducted by water", 10 Wall. 557, 563 (1871).
In United States v. McKee, Eighth Circuit (May 30, 2023), the Court had to decide if Table Rock Lake, a man-made lake on the border between Missouri and Arkansas, constituted navigable waters of the United States for application of the federal criminal Seaman's Manslaughter Statute in the case of a Duck Boat sinking that resulted in 17 deaths.
The Court offered its opinion on "navigable waters" in admiralty as "… properly limited to describing a present capability of waters to sustain commercial shipping." Table Rock Lake, on the border between two states, by definition interstate, was used exclusively for recreational activities in the Court's view. There was no federal jurisdiction for the criminal charges.
Table Rock Lake differs from Eli Cove in that it is not tidal waters of the United States and has no connection with other waters. The Eighth Circuit's emphasis on recreational use (commercial tourism is not commercial shipping) doesn't match up well with the Fourth Circuit's emphasis on susceptibility for commercial use on a body of water "lined with commercially built docks." The Eighth Circuit emphasized current recreational use, while the Fourth Circuit noted the potential for interstate commercial use.
So far, we've noted that references to "navigable waters of the United States" and "waters of the United States" as applied to federal statutes like the Clean Water Act, Rivers and Harbors Appropriation Act, and other federal civil and criminal statutes are not necessarily on point with the "navigable in fact" test used for federal tort jurisdiction (such as the Jones Act) and the Longshore and Harbor Workers' Compensation Act.
Of course, a system of adjudication that employs a "navigable in fact" test will frequently turn on the specific facts of each case. Instead of attempting to identify broadly applicable general principles, perhaps it's better to offer up several recent examples, and you can draw your own conclusions.
In Stewart v. Wang (3/1/2023), the federal district court for the district of Wisconsin ruled that the Delton River was not navigable. It was entirely intrastate, dammed at one end with all tributaries within the state of Wisconsin.
In Ellington v. L.S. (2/9/2024), the federal district court for the district of Arizona held that Lake Pleasant was not navigable. It was entirely within the state of Arizona and, for good measure, was used exclusively for recreational purposes.
On the other hand, lakes that are on the border between two states, like Lake Tahoe (CA/NV) and Lake Havasu (CA/AZ), with current commercial use, are clearly navigable waters of the United States.
In In re Lirette Airboat Services, LLC, the federal district court for the Eastern District of Louisiana held that a swampy, mossy area accessible only by specialized craft (airboat) was not navigable. It was not susceptible to commercial use.
In Newbold v. Kinder Morgan SNG Operator, LLC (3/14/2023), the federal Fifth Circuit held that a gas pipeline right of way was not navigable. It was dry 67% of the time and "was not a channel for useful commerce."
But in Thibodeaux v. Bankhead (6/8/2023), the federal district court for the Western District of Louisiana (within the Fifth Circuit) held that Lost Lake was navigable even though it was only accessible for one-third of each year for commercial crawfish fishing.
In Griffin v. Specialized Environmental Resources, Inc. (2/9/2023), the same Court held that planting seismic rods in a swampy area accessible only by marsh buggy (amphibious tracked vehicle) was also not navigable waters of the United States.
In Richard J. Wilson v. Creamer-Sanzari Joint Venture and Arch Insurance Company, BRB No. 19-0076 (09/16/2019), the U.S. Department of Labor's Benefits Review Board held that a stretch of the lower Passaic River in New Jersey was not navigable basically because it was too shallow to be susceptible of commercial use under the navigable in fact test.
In a case that arose under the LHWCA (Morganti v. Lockheed Martin, 412 F.3d 407, 2nd Cir., 2005), the federal Second Circuit Court of Appeals held that Lake Cayuga, at first glance apparently a wholly intrastate lake within New York State with no current commercial activity was upon closer examination connected to the Erie Canal and on to the Great Lakes and Canada by waterways capable of carrying commercial shipping.
So that's our test: current (or capable of) use in interstate or international commerce. Keywords: interstate and commerce. Usually, the geographic features of the body of water will make the inquiry manageable. Land-locked, intrastate bodies of water are not "navigable," nor are bodies of water that are simply inaccessible to customary commercial craft. The inquiry becomes more difficult when you try to sort out current recreational use versus current or potential commercial use. There you would be advised to research the law in the relevant federal Circuit.
In Part Three, we will consider the high seas and foreign territorial waters in the context of "navigable waters of the United States."