On May 25, 2017, the Philadelphia District of the United States Army Corps of Engineers (the “Corps”) issued a Special Public Notice that proposes to declare certain sections of the western shore of the Delaware River non-navigable, thereby removing the threat of a federal navigational servitude from being imposed on certain properties.
Properties within the ordinary high water mark of navigable waterways are subject to a navigational servitude. A navigational servitude allows the federal government to require the landowner to remove or alter any property improvements within the ordinary high water mark which inhibit navigation, without the requirement of paying just compensation. In addition, all permits issued by the Corps on navigable waters acknowledge the Corps’ right to navigational servitude. Unless the government expressly waives the servitude, the servitude remains a risk on title to the property. Exemption from a navigational servitude is therefore valuable because the federal government cannot take waterfront property without paying just compensation.
Section 1308 of the Water Infrastructure Improvements for the Nation Act allows the Corps to declare certain areas non-navigable for the purposes of removing a navigational servitude. Therefore, if any of the properties included in Section 1308 have structures that are water ward of the ordinary high water mark, e.g., piers or filled areas originally navigable, then the property owners will be protected from a taking of their structures without just compensation.
Section 1308 will apply to Philadelphia properties between the southern line of Moore Street to the northern line of Catherine Street and between the southern line of Callowhill Street to the northern line of East Fletcher Street with areas that are or will be bulkheaded and areas filled or occupied by permanent structures, including marina and recreation facilities. For Pier numbers, the Special Notice is available here.
The Corps will take comments on the areas proposed to be declared non-navigable until June 26, 2017.