What Are the Navigable Waters of the United States? The answers to two previous questions have referenced the “navigable waters of the United States” as part of the “situs” requirement for Longshore Act coverage in section 903(a). So it’s overdue that we come up with an answer to question number 14 in the series of Top Ten Longshore Act questions.
The Longshore Act does not define “navigable waters of the United States”. You may have had occasion to come across definitions used by the U.S. Army Corps of Engineers, the U.S. Coast Guard, or in the provisions of various environmental statutes such as the Clean Water Act.
The Longshore Act does not use any of these definitions. In a Longshore Act adjudication before the U.S. Department of Labor’s Benefits Review Board, the definition of navigable waters will be taken from the case of The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871), in which the Supreme Court stated,
(Rivers) are navigable in fact, when they are used, or susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted … and they constitute navigable waters of the United States, in contradistinction from the navigable waters of the State, when they form in their ordinary condition by themselves, or by uniting other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries.
This so called “navigable in fact” test means that the water at the site of the injury is capable of carrying cargo in interstate or international commerce or joins up with other waters that are capable of carrying cargo in interstate or international commerce.
This is a manageable test as these things go, but sometimes you have to take a close look at the facts.
For example, a large, landlocked, and apparently intrastate lake such as Lake Cayuga in New York State is a “navigable waterway of the United States” because on closer examination it is connected to the Erie Canal by a waterway capable of carrying commerce. But, keeping in mind this exception, lakes, regardless of how large and commercial, that are completely within one state are not navigable waters of the United States
There are other bodies of water that can be confidently (as far as this is ever possible with any issue under the Longshore Act) classified as non-navigable.
The key is a connection or “nexus” with interstate commerce.
This is why the Croton Reservoir, in New York State, is not a navigable water of the United States. It is a landlocked body of water entirely within one state.
For example, man-made or naturally occurring reservoirs dammed at both ends by permanent dams, entirely within one state, are not navigable waters of the United States. They do not carry interstate commerce.
Bodies of water permanently withdrawn from adjacent rivers and located within industrial or manufacturing installations, for example, to be used in heating and cooling systems, are not navigable waters of the United States. Navigability ends at the point at which the water is withdrawn from the navigable source.
This is also why Cayuga Lake, also within New York State, is a navigable water of the United States. It is connected to the Erie Canal system.
The question of whether a body of water is a navigable water of the United States under the Longshore Act can sometimes present a complicated factual issue.
Just look for interstate or international commerce