Navigable servitude

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Navigable servitude is a doctrine in United States constitutional law that gives the federal government the right to regulate navigable waterways as an extension of the Commerce Clause in Article I, Section 8 of the constitution. It is also sometimes called federal navigational servitude.^[1]

The Commerce Clause gives Congress the power to regulate "commerce ... among the several states." In Gibbons v. Ogden (1824), the United States Supreme Court ruled unanimously that this power extended to regulation over navigable inland waterways of the United States, which were an important hub of transportation in the early years of the Republic.^[2] The concept of navigational servitude is relatively new and originated in the 20th century.^[3]

Although the Supreme Court recognizes Federal control over navigable waterways is absolute^[4] the public interest is not absolute.^[5] The government has the power to reroute a waterway,^[6] block a navigable creek,^[7] or completely de-water a river,^[8] each without recourse by those who are adversely affected by the reduction in navigable capacity. One court has held that a federal agency can restrict individuals paddling on a stream, finding boating is not a "federally protected right".^[9] This servitude does not extend beyond the navigable waterway below the ordinary high-water mark,^[3] nor to the banks of a navigable stream.