This is a “navigable” waterway? Pay no attention to those cars….

16 Jul 2010

Grease, 1978

Last week, the EPA reversed a draft decision by the Army Corps of Engineers that only 4 miles of the Los Angeles River was a navigable waterway, holding instead that the entire 51 mile system is a “traditional navigable waterway.”  This allows the system, a part of which is seen here in the movie “Grease” to be governed under  the federal Clean Water Act.  The river, which was paved in the 1960’s, is primarily used for flood control and is dry up to 5 months of each year.

What has interested me is that various reports blamed the Rapanos case as spurring this decision.  Reportedly, when ranchers started to fill in streams and wetlands that were non-navigable tributaries to the River, the EPA looked around for a way to deem the entire system a navigable waterway, arguably subjecting the upstream areas to Rapanos CWA jurisdiction.   What all of these pundits miss is that the CWA has always required that, for there to be federal jurisdiction under the CWA, there must be a navigable waterway!  The US Supreme Court’s decision in Rapanos merely clarified CWA jurisdiction over wetlands without a direct, persistent, surface connection to a navigable waterway or tributary.  The Court held that either (depending which opinion you follow) there must be a direct, persistent surface connection between a wetland and a navigable waterway (or wet tributary) for there to be jurisdiction or that there must be a “significant nexus” (which has a much less clear meaning) between the wetland and the navigable waterway.

No one has asked: (1) why wasn’t State regulation of these non-navigable tributaries sufficient to protect them; and (2) how is a dry, concrete floodway a “navigable” waterway? I have no answer to the first question.  As to the second one, I have a guess (EPA hasn’t yet published anything explaining its decision).  Federal regulations define a navigable waterway as “waters subject to the ebb and flow of the tide and/or are presently used or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.”   As odd as this might sound, “navigable waters” can also include non-navigable tributaries.  As noted above, portions of the River are still truly navigable today.   I suppose that the EPA could argue that the “River” might be used for transportation in the future (some protesters did kayak parts of the River a couple of years ago) or that it was in the past or that these dry stretches are somehow non-navigable tributaries.  But at some point you’d think that 50 years without water would mean it was no longer a river.

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