To most real estate attorneys, encountering a water body or course in a transaction just complicates the issues. A boundary for a fee simple title is theoretically fixed from the center of the earth to the limits of the sky, but a boundary between land and water can be in constant motion, and no body of water extends to the center of earth. So, where is the boundary between the water and the property? Who owns the land under the water? Who has rights to use the water and what are those rights? What laws affect the owner’s rights?
As Lao Tzu observed ‘nothing is softer or more flexible than water, yet nothing can resist it.1 The power of water shapes continents and all of the land it meets, and, also, water bodies or courses are still crucially important avenues for communication, transportation and commerce. Water often forms the boundaries for countries, their political subdivisions and private ownership interests in that 29% of the earth’s surface that comprises fast land. Water bodies can affect the jurisdiction and source of title, the landowner’s rights, the rights of those using the waterway, and regulation for environmental protection, power production, etc. What is the basis for title to submerged lands and shorelines?
The body of law affecting water boundaries and rights in the United States has as many variations as there are federal, state and territorial jurisdictions. Federal law covers all state and territorial jurisdictions and is paramount as to navigability, but state water law can be as significant to specific interests. The east portion of the United States is relatively lush with its rainfall, lakes, rivers and seacoasts, but the portion roughly west of the 100th meridian is mostly semi-arid, giving rise to the development of a ‘prior appropriation’ water allocation regime in the west.2 The western prior appropriation approaches to water and state water sharing compacts are not pertinent here. Also ground water rights are legally separate from surface water rights and are not analyzed here, either.3
Navigability under Federal Law
The Commerce Clause, Article I, Section 8, Clause 2, of the Constitution gives Congress the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Constitution doesn’t mention ‘navigation’ or ‘navigability of waters,’ so the Commerce Clause is the basis for the federal power over navigable waters by implication.4 Under federal law, navigability is determined as navigability in fact in interstate and international commerce. The decision in The Daniel Ball also set the basic test for navigability at page 563:
Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.
Reinforcing the commercial aspect of navigability, 43 U.S.C. §931 provides that“[a]ll navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.” States have enacted similar legislation. See, Va Code Ann. §33.1-183.
How far upstream does the federal power over navigation extend? It’s not an easy determination. If the water body or course is tidal and commercially navigable, federal power extends to “all places covered by the ebb and flow of the tide to the mean high water mark in its unobstructed, natural state.”5 The mean high tide is the average for high tides over an 18.6 year period, the lunar declination cycle.6 However, not all tidal waters are navigable under federal law. If a tributary to a navigable tidal water body is not itself navigable in fact, even though it may be subject to the ebb and flow of tides, it may not be navigable under federal law.7
What if there are obstructions to commercial navigation, like shoals, rapids or water falls, as one goes upstream? In U.S v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct.291, 85 L.Ed. 243 (1940), the Court reversed findings by the district and circuit courts that the course of the New River through Virginia and West Virginia was not navigable even though the river has numerous rapids that obstruct navigation. Appalachian Power argued that the river was not navigable, and that would entitle it to proceed with the construction of a dam under a permit granted by the Commonwealth of Virginia. The U.S. argued that the New was navigable, so the power company had to get a license from the Federal Power Commission for the dam. It argued that, without a license from the FPC, construction of the dam would violate the Federal Water Power Act and the Rivers and Harbors Act of 1899.8 The Supreme Court analyzed the river in three segments, focusing on the middle section of the river, as that part created the best argument against navigability. The Court stated that navigability cannot be “determined by a formula which fits every type of stream under all circumstances and at all times.9 So a waterway that is not suitable for navigation may be navigable if it can be improved artificially to make it suitable. There is no black letter test for navigability,
On the other hand, in the time that has elapsed since ratification of the Constitution, some of those lands that were submerged and navigable have changed by filling, accretion or avulsion. Congress has enacted 33 U.S.C. §§21 to 59kk to declare some of those former water courses and bodies that are now filled in lands as ‘nonnavigable.’ If the ‘waters’ are now nonnavigable, the acts should release the federal navigational servitude that formerly encumbered the title to those lands. For example, title to the venue for the 2014 ACREL meeting in Boston apparently relies on 33 U.S.C. §§ 56 or 59f. Section 56 is the shorter of the two acts and it is a sufficient illustration of this legislation. It provides:
§56. Fort Point Channel and South Bay, Boston, Massachusetts
The portion of the tidewaters in the waterway in which is located Fort Point Channel and South Bay in the city of Boston, Massachusetts, lying above the easterly side of the highway bridge over Fort Point Channel at Dorchester Avenue in the city of Boston is declared to be a nonnavigable water of the United States within the meaning of the Constitution and laws of the United States.
The right to alter, amend, or repeal this section is expressly reserved.
Of course, if Congress alters, amends or repeals one of these acts, it might restore the burden of the navigational servitude to the title to the land. It is improbable that Congress would reassert its navigational powers over the filled in lands in Boston, but the statutes indicate that the risk remains.
The Navigational Servitude
The federal power over navigation on a body of water is called the ‘navigational servitude.’
The “navigational servitude” derives from the Commerce Clause of the Constitution, and gives the United States Government a “dominant servitude”—a power to regulate and control the waters of the United States in the interest of commerce. Palm Beach Isles Associates v. U.S., 208 F.3d 1374 at 1382 (Fed. Cir. 2000).
The federal regulatory power over these waters and lands encumbers the title of the states and any private interest, so, if the federal government exercises the navigational servitude to the detriment of a landowner, it may assert the servitude as a defense against a regulatory takings claim, but only if the taking is to aid navigability. From a real property viewpoint, the most consequential element of the navigational servitude is that privilege to appropriate the land subject to the servitude without compensation upon the exercise of the power of government to control and regulate navigable waters in the interest of commerce.10
However, the navigational servitude is not a defense to a regulatory taking that does not involve an aid to navigation. Palm Beach Isles Associates had been denied a dredge and fill permit from the Corps of Engineers for a 50.7 acre parcel of wetlands and shallow water submerged lands, and sued in the Court of Federal Claims because the denial prevented any economical use of the lands. The court could not determine if the taking was for environmental protection or to aid navigability, so it remanded the case to resolve this disputed fact. If the taking was for environmental protection, the federal government would be liable to compensate Palm Beach Isles Associates.
On remand, the Court of Claims determined that even if navigation was only one of several governmental purposes for denying the permit; that was enough to allow a navigational servitude defense to a taking claim.11 The only issue in the remand was whether “the removal of 49 acres of shallow water, navigable only by the shallow draft craft of commercial and recreational fishermen and boaters, will support a bona fide navigable servitude defense.”12 After an extensive discussion of facts and law, the Court of Claims held that the U.S. “has demonstrated a bona fide federal navigational purpose in the permit denial as to plaintiffs’ 49.3 submerged acres.”13
Federal navigability is important because, like in Appalachian Electric Power, the federal government may invoke the commerce clause of the Constitution to regulate the use of a water body or course for a purpose other than navigation. It is the basis for delegations by Congress, like those to the Federal Power Commission (reorganized in 1977 as the Federal Energy Regulatory Commission) in the Federal Water Power Act of 1920 considered by the Court in Appalachian Electric Power. Also, the Federal Water Pollution Control Act, as amended (33 U.S.C. 1323), and the Clean Water Act, 33 U.S.C. §1251 et seq., are based, in part, on the federal navigational powers.
The Rivers and Harbors Act of 1899, 33 U.S.C. §407 and the Submerged Lands Act, 43 U.S.C. §1301, et seq.,14 each directly exercise and define the scope of the navigational servitude on the waters of the United States. For example, the Rivers and Harbors Act of 1899, 33 U.S,C. §407, provides:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
Under this act, any person who wants to build, say, a dock into navigable waters, even if it is just a dock from a residential lot, must get a permit to build it from the U.S. Army Corps of Engineers authorized by this delegation from Congress.
When Britain’s thirteen colonies declared their independence in 1776, and won it in 178315, they succeeded to Britain’s rights to their coastal and interior water bodies and courses. Each state subsequently admitted to the union received the same rights to navigable waters that were reserved to the original thirteen on an “equal footing” basis.16 Justice O’Connor summarized the “equal footing” doctrine in Utah Division of Lands v. U.S., 482 U.S. 193 at 196, 107 S.Ct. 2318, at 2320, 96 L.Ed.2d.162 (1987):
The equal footing doctrine is deeply rooted in history, and the proper application of the doctrine requires an understanding of its origins. Under English common law the English Crown held sovereign title to all lands underlying navigable waters. Because title to such land was important to the sovereign’s ability to control navigation, fishing, and other commercial activity on rivers and lakes, ownership of this land was considered an essential attribute of sovereignty. Title to such land was therefore vested in the sovereign for the benefit of the whole people. See Shively v. Bowlby, 152 U.S. 1, 11-14, 14 S.Ct. 548, 551-553, 38 L.Ed. 331 (1894). When the 13 Colonies became independent from Great Britain, they claimed title to the lands under navigable waters within their boundaries as the sovereign successors to the English Crown. Id., at 15, 14 S.Ct., at 553. Because all subsequently admitted States enter the Union on an “equal footing” with the original 13 States, they too hold title to the land under navigable waters within their boundaries upon entry into the Union. Pollard’s Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845).
For state borders on the coasts of the Atlantic, Pacific and Gulf of Mexico, only those periodically submerged lands between the mean high water mark and low-water line passed to the state under the equal footing doctrine. The United States had “paramount sovereign rights in submerged lands seaward of the low-water line. U.S. v. Alaska, 521 U.S. 1 at 5, 117 S.Ct. 1888 at 1893, 138 L.Ed. 231 (1997).
Equal footing is complicated because each state has its own body of law affecting water. The opinion in Shively v. Bowlby, supra, illustrated this point by comparing idiosyncrasies among the laws of the thirteen original states when they were admitted. Although they were all subject to English law when they declared independence, laws enacted by the colonial legislatures continued in force as well. In Massachusetts, for example, by the Ordinance of 1641, “the title of the owner of land bounded by tide water extends from high-water mark, over the shore or flats, to low-water mark, if not beyond 100 rods.”17 So, in Massachusetts, ‘mean high water’ doesn’t necessarily limit the title of an upland owner. Consequently, ‘equal footing’ doesn’t mean that water law in the states is uniform.
If the United States reserved land for a U.S. facility or base before a state’s admission to the union, the state will not receive title for those lands within its borders under equal footing. So waters in a Coast Guard station established before statehood remain federal waters.18 In addition, land added by accretion to the Coast Guard station lands was also U.S. land even though California law reserves title to accretions to land owned by private landowners to the state. Also lands granted by the federal government before statehood to an Indian tribe before statehood are not included in the equal footing grant.19 Grants made by the U.S. of lands adjacent to navigable water to private citizens before statehood are presumed to extend only as far as the median high water mark, unless an intent to grant title to lands below the high water mark is clearly expressed in the grant or in legislation.20
Submerged Lands Act
This disposition of ownership between the United States and individual states was changed with the 1953 enactment of the Submerged Lands Act, 43 U.S.C. §1301, et seq. Section 1301 contains the definitions for the chapter, including definitions for “boundaries,” “coast line,” “natural resources.” Section 1301(a) defines the critical term, “lands beneath navigable waters,” as:
(1) all lands within the boundaries of each of the respective States which are covered by nontidal waters that were navigable under the laws of the United States at the time such State became a member of the Union, or acquired sovereignty over such lands and waters thereafter, up to the ordinary high water mark as heretofore or hereafter modified by accretion, erosion, and reliction;
(2) all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles, and
(3) all filled in, made, or reclaimed lands which formerly were lands beneath navigable waters, as hereinabove defined.
The Submerged Lands Act acknowledges the rights of states, or the persons who were on June 5, 1950, entitled to those rights under state law, under the equal footing doctrine.21 It enlarges those rights in §1311(B) by releasing and relinquishing “all right, title, and interest of the United States, if any in and to [lands beneath navigable waters], improvements,22 and natural resources” to the respective States in which the land is located, and the respective grantees, lessees, or successors in interest of those states. To summarize, §1311(B) extended the state ownership of lands beneath navigable waters beyond the low water mark to the three mile limit of the Atlantic and Pacific ocean coasts, and “three marine leagues into the Gulf of Mexico” to the states, and that is how courts have construed it. Perhaps Congress should have ‘conveyed’ or ‘transferred’ those rights instead of using the quitclaim terms ‘releases and relinquishes’ because §1311(B), as written, suggests that Congress abandoned the navigational servitude as well as title to the submerged lands. However, Congress rescued itself in §1311(D) by limiting the scope of the subchapter, and §1311(B).
Nothing in this subchapter or subchapter I of this chapter shall affect the use, development, improvement, or control by or under the constitutional authority of the United States of said lands and waters for the purposes of navigation or flood control or the production of power, or be construed as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power.
In 43 U.S.C. §1314, the United States again reserved “all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs” as paramount to the rights granted to the states in Section 1311(B). It preserved the federal navigational servitude over lands beneath navigable waters up to the high water mark, despite ‘ownership’ of those lands by a state.23 Lands acquired or reserved by the U.S. for its own use are excepted from the operation of §1311 under §1313.
The Submerged Lands Act did not ‘confirm’ a title in the states that had existed under Equal Footing, instead it transferred title to the submerged lands within a state’s boundaries to that state effective on June 5, 1950. That’s why those lands created by accretion caused by a jetty constructed to protect a U.S. Coast Guard station in California belonged to the United States instead of California under applicable federal law.24
The state’s title to lands beneath navigable waters is encumbered by the “public trust.” The public trust is the right of the people to the use and enjoyment of these lands. The land and submerged lands vested in a state under equal footing is held in trust for the “whole people.”25 Originally, it was thought that the public trust applied only to navigable-in-fact waterways and was limited to commerce and fishing.
That changed with the decision in Phillips Petroleum Co. v. Mississippi,supra, where the Court considered the definitions in 43 U.S.C. §1301 of the Submerged Lands Act, and ruled that the public trust also applies to “bathing, swimming, recreation, fishing and mineral [including oil and gas] development.26 It based this holding, in part, upon state decisions to avoid disturbing property rights determined in those cases. In Philips Petroleum, the majority opinion by Justice White held that state ownership of trust lands included “lands lying under waters that were influenced by the tide running in the Gulf of Mexico, but were not navigable in fact.”27 The court used Mississippi’s law to extend the public trust to those non-navigable waters. A dissent by Justice O’Connor, joined by Justices Stevens and Scalia, argued that state ownership and the public trust should only apply to navigable waters.
Although the case began with a complaint to quiet title to 2400 acres in Mississippi, the land at issue in the Supreme Court case involved only “slightly more than 42 acres underlying the north branch of Bayou LaCroix and 11 small drainage streams.”28 The lands are several miles north of the gulf coast but the waters are influenced by the tides because they empty into the Jourdan River, a navigable stream that flows into the gulf.
Phillips Petroleum Co. and its predecessors in title had recorded deeds going back to pre-statehood Spanish land grants for title to the land. The dissent observed that the land was not used for commercial navigation and Mississippi was not seeking to facilitate commerce or to protect the public interest. It was just seeking to lease the land to another private party, Saga Petroleum, U.S.
The public trust does not just limit the water rights of littoral and riparian owners; it also limits the states, as well. In 1883, the Attorney general of Illinois filed a suit against the Central Illinois Railroad to determine the title to lands on the lake front of the City of Chicago that were reclaimed from Lake Michigan by the railroad under a grant from the State and an ordinance by the city. The grant included nearly all of the submerged lands in the harbor, consisting of more than 1,000 acres. In Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892), the Supreme Court upheld the repeal of the law granting the title to the railroad. It ruled that a state may not abdicate its general control of the navigable waters of an entire harbor or bay, or of a sea or lake.
Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property.29
The federal navigational servitude and the public trust doctrine both seem to be the two sides of the same coin. Both impose duties on government to preserve access and use privileges to the general public. However, Congress can enact laws that declare filled in lands as non-navigable, and Illinois Central appears to deny that power to the states. However, our closer examination of 33 U.S.C. §56 (on page 3 above) shows that Congress expressly reserved the right to alter, amend, or repeal the statute. Illinois Central also indicates, that at the very least, “any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation.”30 The opinion emphasized the scale of the grant to the Illinois Central as dispositive of the case:
It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state.31
The public trust was invoked in California to enjoin the diversion of tributary waters of Mono Lake to Los Angeles when it became evident that the diversion of the flow of its five tributaries, Mill, Lee Vining, Walker, Parker and Rush Creeks, resulted in a reduction by one third of the area of the lake. Mono Lake is a salt water lake dependent on the flow of those five creeks to maintain its natural level, and the diversion of those tributary waters imperiled its scenic beauty and ecological values.32 The court held that Mono Lake was navigable even though it was usable only for pleasure boating, and the five creeks were not navigable at all. The diversion of the lake’s tributaries to provide water to Los Angeles harmed the navigable waters of the lake and violated the public trust.
The public trust is not limited to commercial navigation. It also applies to recreational boating, bathing, sunbathing and other beach and water activities and access. See, Bubis v. Kassin, 404 N.J. Super. 105, 960 A.2d 779 (2008); Stephen A Deleo, Phillips Petroleum Co. v. Mississippi and the Public Trust Doctrine: Strengthening Sovereign Interest in Tidal Property, 38 Cath. L. Rev. 571 at 585 (1989).