Supreme Court Muddies Navigable Waters

On February 22 the US Supreme Court issued a decision  in Montana PPL v. Montana, another in a series of cases that only adds to the confusion of those of us with an interest in understanding "navigable waters", which are the basis for Clean Water Act jurisdiction.  The case involved an attempt by the State of Montana to assess rent to Montana PPL, a utility with hydrolelectric facilities that occupy portions of the Missouri, Madison and Clark Fork Rivers.  The State argued that the hydro facilities were located in part on stream beds that are state property and as such should have been paying rent.   The Court concluded that the areas where the hydroelectric plants were located were not navigable, and  Montana was not the owner of the stream beds.

I follow navigable waters cases because, in theory, they help to flesh out the extent of Clean Water Act jurisdiction.  However, each case only seems to make the term "navigable waters" a little more difficult to interpret. At one point, the Court seems to be suggesting that this case will be useful in understanding Clean Water Act jurisdiction limits, as it describes the Daniel Ball method of determining jurisdiction, and notes that it was applied in Rapanos, the most recent elucidation of the reach of the Clean Water Act:

The Daniel Ball formulation has been invoked in considering the navigability of waters for purposes of assessing federal regulatory authority under the Constitution, and the application of specific federal statutes, as to the waters and their beds. See, e.g., ibid.; The Montello, 20 Wall. 430, 439 (1874); United States v. Appalachian Elec. Power Co., 311 U. S. 377, and n. 21 (1940) (Federal Power Act); Rapanos v. United States, 547 U. S. 715–731 (2006) (plurality opinion) (Clean Water Act); id., at 761 (Kennedy, J., concurring in judgment) (same). It has been used as well to determine questions of title to water beds under the equal-footing doctrine. See Utah, supra, at 76; Oklahoma v. Texas, 258 U. S. 574, 586 (1922) ; Holt State Bank, supra, at 56. It should be noted, however, that the test for navigability is not applied in the same way in these distinct types of cases.

Ah, note that last sentence, "the test for navigability is not applied in the same way in these distinct types of cases."  A little further on, the Court gives us some idea of how the tests of navigability can differ, depending on the context:  

In reaching its conclusion that the necessity of portage does not undermine navigability, the Montana Supreme Court misapplied this Court’s decision in The Montello, 20 Wall. 430. See 355 Mont., at 438, 229 P. 3d, at 446. The consideration of portage in The Montello was for a different purpose. The Court did not seek to determine whether the river in question was navigable for title purposes but instead whether it was navigable for purposes of determining whether boats upon it could be regulated by the Federal Government. 20 Wall., at 439, 445. The primary focus in The Montello was not upon navigability in fact but upon whether the river was a “navigable water of the United States.” Id., at 439, 443. The latter inquiry is doctrinally distinct. It turns upon whether the river “forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the customary modes in which such commerce is conducted by water.” Id., at 439 (citing The Daniel Ball, 10 Wall. 557). 

So for purposes of establishing Montana's or the U.S.'s title to the river beds, these Montana rivers were not navigable, but for purposes of the United States asserting jurisdiction  to the river under the Commerce Clause (and under the CWA?), the rivers are or may be navigable.

I'll be interested in seeing the take of CWA scholars as they review this decision, and what they glean from it.