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Abstract

Certain of our citizenry persist in their belief that the water resources of this nation are essentially a free good which necessitates very little, if any, governmental interference in the development or beneficial exploitation of these resources. Theirs is obviously a dream world which dangerously ignores evidence from much of our history as well as the obvious conditions of the present. The nation is confronted with too many people, and the promise of many more, making too many demands upon our existing and foreseeable supply of water to allow the perpetuation of a myth of rugged individualism. This attitude has created an over demand for water which in turn has led to the tragedies of flood, drought, and chronic pollution, a crisis of national magnitude that requires solutions. The federal government does in fact have a history of involving itself in the protection and development of our national waterways. Until fairly recently, however, such federal activity was justified largely on the basis of assuring navigability and was confined primarily to that purpose. But, this narrow genesis of federal involvement has proved to be the key to the federal multiple purpose waterway regulation and development that has become commonplace since at least the 1930's. Endeavors to cope publicly with the water resources crisis have involved considerable expense over the past forty years and even greater public outlays undoubtedly will be necessary in the future. Some portion of such past outlays can be attributed to the necessary purchase of compensable, preexisting, private property rights which proved to be too inconsistent with federal water plans to allow for the continued and effective existence of such rights. To the extent that even greater federal involvement with our water resources is to be expected and encouraged in the future, the occasions necessitating the taking of compensable property rights will also increase. The word to be emphasized, however, is compensable. For, in the instance of many such waterway acquisitions, the federal government, and thus the general taxpayer, has been judicially blessed with a money saving attribute of national sovereignty that is commonly referred to as the navigation servitude. As a result of that doctrine, in many instances no federal compensation is due anyone for the taking of otherwise legitimate property interests. However, the 91st Congress chose to forfeit one very valuable aspect of the navigation servitude and, in so doing, legislatively overruled at least one Supreme Court decision. This article is concerned with examining the occurrence of this congressional forfeiture and overrule.

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