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

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Co., 311 U.S. 377 (1940) (the "New River" case,
construing the Federal Power Act of 1920).
The Court has now clarified that ther~ is no
correlation between the concept of navigability
for title and the reach of federal power. As
Justice Rehnquist stated in Kaiser Aetna v. United
States, 444 U.S. 164 (1979), "reference to the
navigability of a waterway adds little if anything
to the breadth of Congress' regulatory power over
interstate commerce:"
It has long been settled that Congress has
extensive authority over this nation's water
under the Commerce Clause. Early in our
history this court held that the power to
regulate commerce necessarily includes power
over navigation . . . . -[ But] a wide spectrum
of economic activities "affect" interstate
commerce and thus are susceptible of
congressional regulation under the Commerce
Clause irrespective of whether navigation,
or, indeed, water, is involved. The cases
that discuss Congress' paramount authority to
regulate waters used in interstate commerce
are consequently best understood when viewed
in terms of a more traditional Commerce
Clause analysis than by reference to"whether
the stream in fact is capable of supporting

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