When the United States changes the course or current of a navigable water, or changes the access, or prevents its use for generating power, for example, no compensation is due, unless specific legislation authorizes that compensation. When damage results consequentially from an improvement to a river's navigable capacity, or from an improvement on a nonnavigable river designed to affect navigability elsewhere, it is generally not a taking of property but merely an exercise of a servitude to which the property is always subject. Several cases will illustrate these principles.
Scranton v Wheeler In
Scranton v. Wheeler the government constructed a long dike on submerged lands in the river to aid navigation. The dike cut the riparian owner off from direct access to deep water, and he claimed that his rights had been invaded and his property taken without compensation. This Supreme Court held that the government had not 'taken' any property and stated:
Chandler-Dunbar So unfettered is this control of Congress over navigable streams of the country that its judgment as to whether a construction in or over such a river is or is not an obstacle and a hindrance to navigation is conclusive. Such judgment and determination is the exercise of legislative power in respect of a subject wholly within its control. In
U. S. v. Chandler-Dunbar Water Power Co., the government acquired upland property located on the St. Mary's river, the outlet of
Lake Superior. The property owner was a power company, and it argued that its property was more valuable because it the site was suitable for hydroelectric power. The United States refused to pay any enhanced value for the ability to generate power from the location. The Supreme Court rejected the claim:
United States v. Commodore Park In
United States v. Commodore Park, the United States had dredged a tidewater navigable bay and deposited the dredged materials in a navigable arm of the bay called Mason Creek. The dredging destroyed the navigability of Mason Creek and impaired alleged valuable benefits resulting proximity of the land to a navigable tidewater creek. The Court stated that "The broad question presented is whether the Fifth Amendment requires the government to compensate an owner of residential property contiguous to the creek, whose fast lands, though not physically invaded, were decreased in market value." The Court found that obstruction of the navigability was an inherent right of the United States:
United States v. Dickinson In
United States v. Dickinson the Supreme Court considered the consequences of construction of the Winfield Dam, South Charleston. Construction of a dam or flood control works may increase the duration where a navigable water flows up to the height of the ordinary high water mark. This increased duration of full flowage is not compensable, of course. In addition, the pool behind the dam overflowed the prior ordinary high water level, and the landowner was entitled to compensation. This much was not in dispute. The dispute arose because, "In addition, erosion attributable to the improvement damaged the land which formed the new bank of the pool." The United States argued that it was not required to reimburse the landowner for this consequential erosion. The Court rejected that contention:
United States v. Sponenbarger Flood control projects inherently change the hydrology of the rivers, lakes and streams both above and below the project. The Supreme Court has found a taking when a Government project directly subjects land to permanent intermittent floods to an owner's damage. However, often the result of these projects is consequently to reduce water flow downstream at some times, and to increase it above the natural flow in some places at other times. Because of the complex hydrology of river systems, it is almost inevitable that some landowners may show, or seek to show, that sporadically, their lands experience flooding that would not otherwise occur in the absence of flood control projects. These allegations have periodically led landowners to claim compensation for changes in the hydrology of river systems having a consequence on their lands. This is the subject of the Court's decision in
United States v. Sponenbarger. The Court's decision begins with some historical context: Eventually, the Corps of Engineers came to recognize that not all reaches of the river could be protected. A plan was authorized which would provide a higher level of protection to some lands; other lands would be protected by lower levees, and thus subject to a greater likelihood of flooding: The Supreme Court rejected the contention that landowners exposed to sporadic flooding as a result of this flood control plan were constitutionally required to compensation: An undertaking by the Government to reduce the menace from flood damages which were inevitable but for the Government's work does not constitute the Government a taker of all lands not fully and wholly protected. When undertaking to safeguard a large area from existing flood hazards, the Government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect. In the very nature of things the degree of flood protection to be afforded must vary. And it is obviously more difficult to protect lands located where natural overflows or spillways have produced natural floodways. ... .The far reaching benefits which respondent's land enjoys from the Government's entire program precludes a holding that her property has been taken because of the bare possibility that some future major flood might cause more water to run over her land at a greater velocity than the 1927 flood which submerged it to a depth of fifteen or twenty feet and swept it clear of buildings. Enforcement of a broad flood control program does not involve a taking merely because it will result in an increase in the volume or velocity of otherwise inevitably destructive floods, where the program measured in its entirety greatly reduces the general flood hazards, and actually is highly beneficial to a particular tract of land. "The constitutional prohibition against uncompensated taking of private property for public use is grounded upon a conception of the injustice in favoring the public as against an individual property owner," the decision continued. "But if governmental activities inflict slight damage upon land in one respect and actually confer great benefits when measured in the whole, to compensate the landowner further would be to grant him a special bounty."
Twin Cities Power The
Chandler-Dunbar decision was confirmed once again in
United States v. Twin Cities Power, where the court rejected a power companies contention that uplands taken should be compensated at a value which reflected its special value because of its power generation capability: The
Twin Cities case served as a watershed. After
Twin Cities, individuals would know they could maintain no rights to the benefit of their property when utilized as part of the navigable waterways. Further, upon a condemnation, the increased value inuring from proximity to a waterway would no longer be paid. These developments in the law led the Supreme Court to acknowledge in 1979 that Congress's power to regulate the nation's waterways is best understood when viewed in terms of more traditional Commerce Clause analysis than by reference to whether the stream in fact is capable of supporting navigation or may be characterized as navigable water of the United States. Under the most recent Commerce Clause decisions, the test for determining whether Congress has the power to regulate an activity is whether the activity "substantially affects" interstate commerce. In
Twin Cities, the Court stated that "[i]t is not for courts ... to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation. In light of a very recent Supreme Court decision, however, there is some reason to believe that the courts may not automatically accept Congressional findings that a project benefits navigation or, to use the analysis favored in Kaiser Aetna, that it "substantially affects" interstate commerce.
In United States v. Morrison, the Court, in striking down a section of an act as outside the Commerce Clause power, found that Congressional findings that the subject matter of the statute affected interstate commerce were inadequate. Since the five members of the Court who comprised the majority in
Morrison have also adopted an expansive reading of the Takings Clause in the area of regulatory takings, one should not automatically assume that the judiciary will continue to defer to Congressional findings in cases involving the constitutionality of Congressional regulation of navigable waterways. It is likely that there will be waterway projects whose effects on interstate commerce will be so attenuated that the Court could declare them to be outside Congress's power to regulate interstate commerce. ==Post-legislative judicial determinations==