ABSTRACT
The rules and laws affecting water rights are heavily dependent on the division of authority between the federal and state governments. This division is often referred to as federalism.
The federal government in the United States is one of limited power. This means “powers not delegated to the United States” belong to the people or the states.*
One of the primary claims to federal authority over the waters of the United States comes from Art. 1 § 8 clause 3 of the United States Constitution, which grants the United States power to regulate commerce “with foreign nations and among the several states, and with the Indian tribes.”†
English Common Law recognized rights of all subjects to navigate, fish, or hunt on the surface of navigable waterways. This rule is recognized in the United States today.
