[Title 32 CFR 644.2]
[Code of Federal Regulations (annual edition) - July 1, 2004 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter V - DEPARTMENT OF THE ARMY (CONTINUED)]
[Subchapter J - REAL PROPERTY]
[Part 644 - REAL ESTATE HANDBOOK]
[Subpart A - Project Planning]
[Sec. 644.2 - General.]
[From the U.S. Government Printing Office]


3242004-07-012002-07-01true644.2Sec. 644.2NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE ARMY (CONTINUED)REAL PROPERTYREAL ESTATE HANDBOOKProject Planning
Sec. 644.2  General.

    (a) Purpose. Sections 644.2 through 644.8 describe the authorities 
and procedures of the Corps of Engineers relating to real estate 
planning and project authorization for the acquisition of land and 
interests therein for all water resource projects.
    (b) Applicability. These sections are applicable to all Division and 
District Engineers having civil works real estate responsibilities.
    (c) River and Harbor and Flood Control Projects--(1) River and 
Harbor Projects. The Act of Congress approved April 24, 1888 (33 U.S.C. 
591) authorizes acquisition of land for river and harbor purposes. These 
include the construction, operation, maintenance and improvement of both 
natural and artificial waterways, the construction of locks and dams, 
dikes, bulkheads, jetties, revetment and other bank protection works, 
and spoil disposal dikes and retaining structures for construction and 
maintenance. Unless otherwise specified by Congress, local interests 
furnish, free of cost to the United States, all lands, easements and 
rights-of-way required for initial construction, operation and 
subsequent maintenance. A cash contribution may also be required if 
enhancement of land values results from disposal of spoil dredged from 
project areas (ER 1150-2-301 and EM 1120-2-101).
    (2) Flood Control Projects. The Act of Congress approved March 1, 
1917 (33 U.S.C. 701) authorizes acquisition of land for flood control 
purposes, and section 2 of the Act of Congress approved June 28, 1938, 
as amended (33 U.S.C. 701c-1), authorizes the acquisition of land and 
interests therein for dam and reservoir projects, channel improvements, 
and rectification projects for flood control at Federal expense. Dam, 
reservoir and lake projects are generally constructed entirely at the 
expense of the United States and are maintained and operated with the 
use of Federal funds. Local interests are not required to furnish lands, 
easements and rights-of-way for dam and reservoir projects, unless 
specifically authorized by law for small reservoirs which provide 
localized flood protection (EM 1120-2-101). For local flood protection 
projects, except channel improvement or channel rectification projects 
authorized by the Flood Control Acts of 1936, 1937 and 1938, local 
interests must provide, without cost to the United States, all necessary 
lands, easements, and rights-of-way. They must also hold and save the 
United States free from damages due to the construction, operation and 
maintenance of the project, except where such damages are due to the 
fault or negligence of the United States or its contractors, and 
maintain and operate all the works after completion, in accordance with 
regulations prescribed by the Secretary of the Army. Channel improvement 
and channel rectification projects authorized by the Acts of 1936, 1937 
and 1938 are built entirely at Federal expense and no local cooperation 
is required. Exceptions to these rules are provided by law in the case 
of certain specific projects such as hurricane protection, shore 
protection, beach erosion control or other purposes. As in river and 
harbor projects, a cash contribution may also be required if enhancement 
of land values results from disposal of spoil dredged from project areas 
(ER 1150-2-301 and EM 1120-2-101).
    (d) The Navigational Servitude. As a general rule the United States 
does not acquire interests in real estate which it already possesses or 
over which jurisdiction is or can be legally exercised. Irrespective of 
the ownership of the banks and bed of a stream below ordinary high water 
mark, and irrespective of western water rights under the prior

[[Page 108]]

appropriation doctrine, no further Federal interest is required for 
navigation projects in navigable streams below the ordinary high water 
limit. It is required, therefore, that the acquisition plan consider the 
extent of the navigational servitude.
    (1) ER 1165-2-302 contains the practice and procedures regarding 
navigation.
    (2) The navigational servitude affects abutting uplands, in that the 
special site value attributable to their location near a navigable 
stream is noncompensable. However, this has been partially changed by 
section 111 of Pub. L. 91-611. In all cases where real property is 
acquired by the United States for public use in connection with any 
improvements of rivers, harbors, canals or waterways of the United 
States, the compensation to be paid shall be the fair market value of 
such real property based upon all uses to which such real property may 
reasonably be put, including its highest and best use, any of which uses 
may be dependent upon access to or utilization of such navigable waters. 
In cases of partial acquisitions of real property, no depreciation in 
the value of any remaining real property shall be recognized, and no 
compensation shall be paid for any severance to the remaining real 
property which results from loss of or reduction of access from the 
remaining real property to the navigable waters because of the 
acquisition of real property or the purposes for which the real property 
is acquired.
    (3) Injury to private property within or abutting non-navigable 
streams is compensable if inflicted in the course of an exercise of the 
navigation power limited to the navigable mainstream. U.S. v. Kansas 
City Life Ins. Co., 339 U.S. 799 (1950), U.S. v Cress, 243 U.S. 316 
(1917).
    (e) Buildings. Buildings for human occupancy, as well as other 
structures which would interfere with the operation of the project, or 
which would be substantially damaged by inundation, are prohibited below 
the guide acquisition line unless otherwise specifically approved by the 
Chief of Engineers.
    (f) Estates. Standard estates for acquisition of land or interests 
therein are contained in Subpart C. Non-standard estates should be 
submitted to HQDA (DAEN-REA-P) WASH DC 20314 for approval.