Waterfront Property and Wetlands

Navigable Waters

The term navigable has been used to identify those waters that are reserved for public use and, hence, title to the bed and the water would lie with the state or federal government. Navigable waters are essentially waters not subject to meaningful private ownership and are either tidal or non-tidal. The federal law and the laws of the states have continued to develop and change to fit the changing circumstances since the colonial times. In England all waters of importance to commerce were affected by tides. On the American Continent, rivers and large inland lakes were not affected by tides but yet were important to commerce and used for navigation. The concept of navigable waters was expanded by court decisions and gave the federal government jurisdiction and ownership of these non-tidal waters under the Commerce Clause of the U.S. Constitution. When states entered the Union they were then given title to the navigable waters within their borders. State ownership of the lands under these waters was expanded and codified under the Submerged Lands Act of 1953.


Under a federal definition of navigability, if the water in question at one time belonged to the federal government and the federal government transferred it to the state when the state joined the Union, then the water is deemed navigable, if, when it was transferred, the water was used or could have been used in its ordinary condition for commerce. For the 31 states that acquired their navigable waters from the federal government, public ownership of these waters and lands is then determined by this federal definition by examining the water’s natural condition at the time of statehood. The balance of the states include the 13 original states, which preceded the existence of the federal government, and the five states formed from the original states, as well as Texas, which was a republic before joining the union. In those 19 states the federal definition may not be dispositive on the issue.