PIANC Panama - Agenda

The United States (U.S.) boasts 12,380 miles of coastline[1] including 25,000 miles of commercially navigable channels[2] and 239 locks at 193 locations.[3] Within the geographic vastness of the U.S., resides eleven domestic and transboundary large basins: Great Lakes Seaway System; Ohio River Basin; Delaware River Basin; Illinois River; Kentucky River; Mississippi River Basin; Missouri River Basin; Columbia River Basin; Gulf Intracoastal Waterway; Atlantic Intracoastal Waterway; and the Tennessee-Tombigbee System.

While the classification of European inland waterways is a set of standards for interoperability of large navigable waterways, the United States classifies waterways in a more piecemeal fashion. There is no broad, overarching classification in the United States for navigation. This paper will present a brief history of U.S. waterways governance and jurisdictions to pose the question about the need for a classification of navigable waters.

A definition of waters of the United States as it relates to the U.S. Army Corps of Engineers (USACE) can be found under Title 33, Part 328 of the Federal Code of Regulations (CFR) to include all waters which are “currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters subject to ebb and flow of the tide.”[4] Title 33, Part 207 of the CFR provides procedural directives to the USACE in a range of operational areas including navigation regulations, flood control, drinking water, removal of wrecks, aquatic plant control, permitting, and the like. Interestingly, Part 329.4 also provides a definition of “navigable waters of the United States” almost identical to that under Part 328, except to also add that “a determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.” [5]

U.S. Coast Guard regulations under Title 33, Section 2.26, defines inland waters to mean the waters shoreward of the territorial sea baseline. Coast Guard regulations also define waters for territorial seas, internal waters, contiguous zone, exclusive economic zone, and high seas. Definitions are often related to boundaries and jurisdictions, particularly with respect to wetland and stream connectivity. For example, the Clean Water Act (CWA) was enacted in 1972 to “restore and maintain the chemical, physical and biological integrity of our nation’s waters. The term “navigable waters of the U.S.” was derived from the Rivers and Harbors Act of 1899 to identify waters that were involved in interstate commerce and designated as federally protected waters. Since then, court cases have further defined navigable waters to include waters that are not traditionally navigable. [6] A jurisdiction designation can directly impact permitting requirements and associated challenges, hence its heightened importance.

The National Wild and Scenic Rivers Act of 1968 sought to preserve certain rivers with outstanding natural, cultural, and recreational values in a free-flowing condition for the enjoyment of present and future generations. The goal was to safeguard the special character of a river, while recognizing the potential for appropriate use and development as well as encouraging river management across political boundaries. Rivers are “classified” as wild, scenic or recreational but do not provide a commercial navigation perspective. Rather, the goal is to balance the location of dams and development against natural, free flowing river aspects.[7]

In summary, jurisdiction over navigable waters – generally – belongs to the federal government rather than states or municipalities. The federal government can determine how the waters are used, by whom, and under what conditions and, again generally, has the power to alter the waters, such as by dredging or building dams. While in practice, these actions can impact the navigability of a waterway, it does not provide an overarching operational classification between large basins similar to the interconnected classification of waterways in Europe, except to the extent of describing the minimum depth requirements on the inland system versus coastal, “deep-draft” systems. The question, then, is if a more-broad, yet formal operational classification would be of benefit in U.S. waters. Or, is the United States too far down the regulatory road – particularly since the governance, itself, is different between the 11 large basins?

[1] CIA World Factbook: United States. Available at https://www.cia.gov/library/publicationhs/the-world-factbook/geos/us.html, May 2016.