Page "Commerce Clause" Paragraph 7

This power to regulate navigation confers upon the United States a dominant servitude, FPC v. Niagara Mohawk Power Corp., 347 U. S. 239, 249 ( 1954 ), which extends to the entire stream and the stream bed below ordinary high-water mark.

The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.

United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592, 596 – 597 ( 1941 ); Gibson v. United States, 166 U. S. 269, 275 – 276 ( 1897 ).

Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, South Carolina v. Georgia, 93 U. S. 4 ( 1876 ), or otherwise impair or destroy a riparian owner's access to navigable waters, Gibson v. United States, 166 U. S. 269 ( 1897 ); Scranton v. Wheeler, 179 U. S. 141 ( 1900 ); United States v. Commodore Park, Inc., 324 U. S. 386 ( 1945 ), even though the market value of the riparian owner's land is substantially diminished.