Land And Water U.S.A.




Wednesday, January 13, 2016

Navigable versus Non-navigable Water


Navigable versus Non-navigable Water

 

Respective of the term navigable - and WOTUS (Waters of the U.S.), please know that under statute, the EPA or Army Corps of Engineers does not have authority over water/waterways instates west of the 100th meridian.

Army Corps builds structures (dams, bridges etc.), but does not have regulatory authority over water.
When researching *removal of the debris/sediment on the S. Platte River in Colorado, we learned that there are "no open waters of the U.S." in the states west of the 100th meridian.
Federal jurisdiction applies only - to navigable waters of the United States.

So if, for one example, the South Platte is non-navigable, then there is no federal jurisdiction in the first place.

Even if the South Platte was navigable, then Title 33 USCA Chapter 26 Section 1370 says: "Except as expressly provided in this chapter, nothing in this chapter shall...  (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States." 

What else is exempt from EPA or Army Corps authority?  (1) all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR § 423.11(m)  - - which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

*The term navigable waters of the United States is defined in section 502(7) of the FWPCA, and includes: (1) all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act, (FWPCA) (Pub. L. 92-500) also known as the Clean Water Act (CWA), and tributaries of such waters as; (2) interstate waters; (3) intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and (4) intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce -

*removal -  Statutory permit exemptions make it clear that even if there were navigable waters in any state, Congress intended to exclude agricultural activities and emergency repairs such as the bridge debris clearing.

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