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Navigation -- Rooted in the Constitution

by Glen Squires
WHEAT LIFE, March 2002

Focus for Lewis and Clark

The Lewis & Clark expedition looked to link the great river systems of the Columbia and the Missouri rivers. Navigation was the central and the motivating purpose for the Lewis and Clark expedition. Lewis and Clark's Corps of Discovery expedition into the Pacific Northwest was conceived, funded and pursued to discover and determine how commerce between the East and West coasts could be developed via a water route (and portage) linking the great river systems of the Columbia in the West and Missouri and Mississippi rivers in the East.

This central theme of commerce and navigation was highlighted recently by the Inland Ports and Navigation Group (IPNG) in a series of submissions to federal agencies making endangered species fish recovery policies in the Columbia Basin.

IPNG comprises the upriver ports on the Columbia and Snake rivers from Morrow, Oregon to Lewiston, Idaho, as well as towing interests working to protect navigation that provides wheat farmers with the least expensive method -- barge transportation -- to move wheat to export ports in the lower river. The group was formed a few years ago to intervene in the Endangered Species Act (ESA)-generated lawsuit known as the "Clean Water Act" lawsuit challenging Snake River dam impacts on fish due to water temperature and dissolved gas. More recently, IPNG intervened successfully in the lawsuit by environmental groups challenging the new Biological Opinion.

Because IPNG member ports and their commissions also recognized that administrative recommendations or immediate steps resulting from the various public ESA-related "processes" might try to impair navigation, the group developed a series of administrative submissions to protect navigation. The group's lengthy and legal-based comments were submitted to federal agencies involved with power or fish recovery programs.

Using documents unearthed in research by their Portland lawyer, Walt Evans, IPNG cited in defense of navigation a personal letter from Thomas Jefferson to Meriwether Lewis in the spring of 1803, wherein Jefferson stressed the true purpose of the proposed expedition: ". . . The object of your mission is to explore the Missouri river, & such principal stream of it, as, by its course & communication with the water of the Pacific Ocean may offer the most direct & practicable water communication across this continent, for the purpose of commerce . . ."

Lewis served as Jefferson's personal secretary -- today's White House chief of staff. To such a trusted aide, Jefferson spelled out the mission's purpose.

Navigation also was an essential element, IPNG reports, of Jefferson's message to Congress in January 1803, requesting congressional approval and financial support for the Lewis and Clark Corps of Discovery -- to the tune of $2500: ". . . The commerce on that (i.e.: Canadian) line could bear no competition with that of the Missouri, traversing a moderate climate, offering, according t0 the best accounts, a continued navigation from its source, and possibly with a single portage, from the Western Oce3an, and finding to the Atlantic a choice of channels through the Illinois, or Wabash, the lakes and Hudson, through the Ohio and Susquehanna, or Potomac or James rivers, and through the Tennessee and Savannah rivers . . ." (Journal of the Executive Proceedings of the Senate of the United States of America, 1789-1873.)

Evans, a lawyer with the Northwest law firm of Schwabe, Williamson & Wyatt, noted to this writer that Jefferson's reference to several East Coast rivers in this message was good politics. It touched several different states where these rivers flowed east or south -- all with members of Congress who were asked to finance the mission. (Some things never change.)

Mandate by Congress

In providing its comments to such federal agencies as the Corps and Bonneville Power Administration, the INPG argues for the core rights of navigation to be considered specifically. They urge in clear terms the importance of each federal agency staying within its legal "sideboards" in determining final administrative steps and recommendations relative to dam and river operations as part of fish recovery efforts in the lower Snake and Columbia rivers.

The statutory basis for navigation's unique status in the region is thereby highlighted by the IPNG. The Columbia/Snake River inland waterway system was developed by congressional action, with navigation as its centerpiece, pursuant to its powers granted under the commerce clause of the United States Constitution. Congress may pass legislation that not only protects rights of navigation, but may enlarge them through river and harbor improvements.

Moreover, in the Rivers and Harbors Act of 1945, Section 2, Congress not only authorized construction of the McNary Dam, it also authorized the development of an inland navigation system on the Snake River: ". . . Snake River, Oregon, Washington and Idaho: the construction of such dams as are necessary, and open channel improvements for purposes of providing slack water navigation and irrigation in accordance with the plans submitted in House Document Numbered 704, Seventy-Fifth congress, with such modifications as do not change the requirement to provide slack-water navigation as the Secretary of War may find advisable after consultation with the Secretary of the Interior and such other agencies as may be concerned."

The INPG reminded the agencies that Congress also specifically authorized in Section 203 of the Flood Control Act of 1962 that the navigation channel in the Columbia/Snake River be maintained at a 14-foot level in the reservoirs behind each dam consistent with the congressional mandate. This minimum 14-foot water level enabling navigation to occur is commonly known as the "Minimum Operating Pool" or MOP.

The U.S. Constitution protects the congressionally mandated Columbia/Snake River inland navigation system and the exercise by Congress of the navigational servitude pursuant to the Commerce Clause, according to the INPG. Thus, any administrative recommendation adversely affecting the operation and maintenance of the channel conflicts with this mandate.

During salmon migration, the four lower Snake River dams are in fact operated at or near this minimum operating pool level. To challenge river operations requiring levels below MOP is simply to challenge the Corps' authority to maintain the navigational channel as mandated by Congress.

Also described in IPNG documents are U.S. Supreme Court cases highlighting navigational servitude as superior to that of a state's own sovereign interest in its navigable waters. Additionally, they also cite the Rivers and Harbors Act of 1899 in protection of the integrity of a navigable channel.

These recent comments of the IPNG are all straightforward. The lower Snake River dams were specifically authorized and constructed to create a barge navigation channel. The intent of Congress is clear: these four dams are and intended part of the inland navigation system created by Congress. The 14-foot navigation channel and the operation of the dams, therefore, are protected by the exercise of the navigational servitude by Congress. IPNG argues that the federal government faces certain limits as to what it can recommend (or implement administratively) involving navigation as part of the region's species recovery plan, in the absence of specific congressional authorization.

The CWA cannot undermine navigation

The Clean Water Act (CWA) recognizes the special role of navigation. The IPNG reminds federal agencies that the CWA specifically states that the "Act shall not be construed as . . . affecting or impairing the authority of the Secretary of the Army to maintain navigation." They buttress this argument with documentation from the U.S. Code, state code and court rulings.

The IPNG states that Congress did not intend for the CWA to be used to affect or impair operations undertaken to maintain navigation. The IPNG highlights the legal limits to both the ESA and the CWA, noting that those limits must be maintained and not skewed in any administrative attempt to broaden the reach of either or both by the proposed integration of the two Acts relative to species recovery.

Even Washington State Clean Water Act regulations acknowledge navigation's unique status and provide protection of the Snake River navigation channel, specifically providing that "commerce and navigation" are uses that are to be maintained on all navigable waters of the State of Washington, according to the IPNG. A characteristic use of "Class A" waters in Washington specifically includes "commerce and navigation," according to WAS 173-201A-030(2)(b)(vi).

The IPNG comments note a U.S. Supreme Court ruling ". . . in many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation, or here as a fishery" as part of the ruling in PUD No 1 v. Washington State Department of Ecology. And finally, note is made that Washington State's surface water regulations do not establish any violations of those standards by the Corps of Engineers.

Comments by IPNG conclude by stating that the State of Washington mandates commerce and navigation, as designated existing uses of the lower Snake River, be protected by the water quality standards. The 14-foot navigational channel therefore constitutes a limit on the power of the state to further impair commerce and navigation. Thus, a sufficient quantity of water to provide a 14-foot navigation channel at minimum regulated flows must be available at all times.

The IPNG asserts that the federal government may not use the CWA to undermine either the existence of dams already protected under the Commerce Clause of the Constitution, or operations necessary to maintain navigation.

The Washington Wheat Commission likewise supports the congressionally mandated uses of the river system. It is a lifeline to global markets for producers and their products.

We will see various organizations try to use the upcoming bicentennial of Lewis and Clark's journey to claim linkages to aspects of their discoveries. As the celebration of Lewis and Clark's Corps of Discovery expedition into the Pacific Northwest unfolds, navigation should be recognized -- and even honored -- as the expedition's central focus.

Glen Squires
Navigation -- Rooted in the Constitution
WHEAT LIFE - p.36, March 2002

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