Aquatic Land Boundaries Page 9 of 75
Aqland Refresher for 2012 Revised 12/26/2011
The Army Corp of Engineers and the US Coast Guard prepare administrative determinations of
navigability in order to apply their administrative duties over navigable waters of the United States. Also,
states, such as Oregon and Washington make administrative determinations of navigability for their
management purposes. From the Federal court decisions provided above, an opinion for an administrative
navigability determination for land title purposes may be restated as follows:
“Navigable waters of the United States” are those to which congressional acts apply and they must
interconnect to permit navigation to navigable waters in other States or countries. Navigable
waters of the United States do not confer title to the soil under those waters to the United States.
“Navigable waters of the State” are those navigable in law that does not interconnect with navigation
in other States or countries. The navigable waters of the State include ownership of the soil under the
waters.
Navigability of any body of water is always a question of fact to be established by appropriate
evidence. The following elements sound very satisfactory, but it leaves broad leeway in the court’s
application of the specific facts to a situation. Based upon the principals provided, the many elements
considered in determining navigability are:
Tidal Influence: On a river, where is the upstream limits for the ebb and flow of the tides? For
example, the upstream limit of tides on the Columbia River is to river mile 110.
Meander Lines: The fact that the General Land Office (GLO) surveys established meander lines
along the banks of a river is evidence the river was navigable, but it is not conclusive as to navigability and
is evidence only of the surveyor’s opinion.
Capacity: Linear measures for capacity on a lake would include the size (area) and ordinary depth;
and for rivers the measurements would include ordinary depth and width, with less consideration for the
gradient (slope measured by vertical drop per mile).
Capability: Under natural and ordinary condition, the capability for navigation would include the
volume of water, the gradient of the river, or obstacles to navigation such as, mud flats, rapids and falls.
Rivers with a gradient of less than 10 vertical feet per mile were preferred for steamboat traffic, but
gradients as much as 50 feet per mile could be navigated with canoe or row boat. However, rapids or falls
will not establish an upper limit to navigability if the river travel is still feasible by portage around the
obstacles. The navigability quality of a river need not be continuous, but the periodic use must be of a
sufficient duration to serve a useful purpose.
Customary Modes of Trade or Travel: The types of commercial use along a waterway are
extremely varied and will depend on the character of the region, its products, and the difficulties or
dangers of navigation. Customary modes of travel could be paddle wheel steamers, keelboats, scows and
barges, rowboats, canoes, or rafts. Sufficient commerce may be shown by historical uses of canoes or
other frontier craft so long as that type of boat was common or well suited to the place and period.
Documented Use: Many early court cases placed greater weight on the capability and capacity of
the water body to support commerce and less significance on past or current use of the water body. Actual