7390

• UCREFRP Catalog Number: 7390
• Author: Natural Resources Law Center.
• Title: Boundaries and Water
• USFW Year: 1989.
• USFW - Doc Type: Allocation and Use of a Shared Resource.
• Copyright Material: NO

B.

Federal Reaulatorv Authoritv

1. Confusion with the Concept of Naviaabilitv for
Title

In the early cases, the classification of waters

as navigable for title was used as a measure of

the federal government's regulatory authority

under the Commerce Clause. The Court in Gibbons

v. Qaden, 22 U.S. (9 Wheat.) 1 (1824), interpreted
the Commerce Clause as "comprehending navigation

within the limits of every state." Under the

federal commerce power, navigable waters were

described as "the public property of the nation,

and subject to all direct legislation by
Congress." Gilman v. Philadelphia, 70 U.S. (3

Wall.) 713, 724-25 (1865). During the twentieth

century, and especially after 1937, the reach of

Congress's power under the Commerce Clause

expanded dramatically. ~,~, NLRB v. Jones

and Lauahlin Steel Corp., 301 U.S. 1 (1937);
Katzenbach v. McCluna, 379 U.S. 294 (1964).

Unfortunately, widespread confusion developed

between the concept of navigability for title and
Congress's legislative authority, because some

cases had treated the two synonYmously, ~, ~,

Gilman v. Philadelphia, supra, and because several

federal- statutes articulated CQngress's regulatory

authority in terms of "navigable waters," ~,

~, United States v. Appalachian Electric Power

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