Navigable Waterway

[Chief Grey Bear]

I found Vicky's statement on what a Navigable Waterway interesting.

http://hartzler.house.gov/blog/countering-concerted-attack-people-jobs

Hardworking Missouriansparticularly those living in agricultural regionsare already familiar with the disturbing Waters of the United States rule. This rule twists the 1972 Clean Water Act to define navigable waterway as any stream, creek, or ditch with water that might eventually make its way into an actual navigable waterway. Farmers and livestock producers across Missouri are outraged they will need permission from a Washington bureaucrat to work their land.

[Al Agnew]

Thos hard working Missourians don't own the water. Whatever they do affects everything downstream. Yeah, it sucks to have to get permission to screw around in a stream bed on your land, but if your neighbor downstream knew what you were doing and how it was messing up his part of the stream, he'd want a little more oversight, too.

In reality, even with somebody supposedly watching over things, landowners can still do pretty much as they please in small creeks running through their land, unless it's right next to the road where people can easily see it.

[405z06]

Homegirl is on point, imo

[Chief Grey Bear]

Thos hard working Missourians don't own the water. Whatever they do affects everything downstream. Yeah, it sucks to have to get permission to screw around in a stream bed on your land, but if your neighbor downstream knew what you were doing and how it was messing up his part of the stream, he'd want a little more oversight, too.

In reality, even with somebody supposedly watching over things, landowners can still do pretty much as they please in small creeks running through their land, unless it's right next to the road where people can easily see it.

The interesting part for me was in what all she claimed was a navigable waterway.

The rest of the drivel was the just the use of a lot of adjectives to enhance her political spin.

[hoglaw]

I think there is a difference between navigability and riparian rights. Upstream land owners should not be able to appropriate water from streams of any size in a manner that affects downstream owners. That means no damming, discharging, or diverting to the point that the downstream owners' use is impaired. But I don't think that means the water is automatically "public" in the sense that anyone can float or fish on any water anywhere.

[Tim Smith]

In some states there are laws to allow access to the banks of large streams (New York for instance), but it's the water, not the riparian zone that is public in most places. Any kind of activity that sends polluted, impaired water downstream directly impacts the public interest and should be regulated when impacts are clear.

The "navigable" aspects of this play out in interesting ways. At one point I was looking for records of "small" fish kills on streams in Illinois. It turns out most district biologists only track that data on the very largest "navigable" streams that fall under the narrowest definition of that word.

Even though small fish kills are common in Illinois on medium to small streams (the best smallmouth streams in the state fall into that category), only a tiny handful of districts keep that data. They gave 2 reasons 1) because they had no leverage to do anything about it because those weren't "navigable" streams. 2) Impacts from those kills were minimal (although in some cases I don't buy that at all. Most kills are due to low dissolved oxygen and those preferentially remove large fish. Gratuitously wiping out 40-400 of your best breeding stock seems like a pretty sub-optimal situation for a fishery, even if replacements can move in from other places).

Up to now, this stuff all just flies under the radar.

[Tim Smith]

Here's the link to the EPA website describing the new guidelines.

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters_guidesum.cfm

The practical outcome will be that if the larger rivers are in good shape, most of the smaller ones must be as well. If there's a problem in the larger drainage, they'll trace it back to the source of the problem and get it cleaned up.

Summary of Key Points in the Proposed Guidance

Based on the agencies' interpretation of the statute, implementing regulations and relevant caselaw, the following waters are protected by the Clean Water Act:

• Traditional navigable waters
• Interstate waters
• Wetlands adjacent to either traditional navigable waters or interstate waters
• Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally
• Wetlands that directly abut relatively permanent waters

In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a "significant nexus" to a traditional navigable water or interstate water:

• Tributaries to traditional navigable waters or interstate waters
• Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
• Waters that fall under the "other waters" category of the regulations. The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.

The following aquatic areas are generally not protected by the Clean Water Act:

• Wet areas that are not tributaries or open waters and do not meet the agencies' regulatory definition of "wetlands"
• Waters excluded from coverage under the CWA by existing regulations
• Waters that lack a "significant nexus" where one is required for a water to be protected by the CWA
• Artificially irrigated areas that would revert to upland should irrigation cease
• Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing
• Artificial reflecting pools or swimming pools created by excavating and/or diking dry land
• Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons
• Water-filled depressions created incidental to construction activity
• Groundwater drained through subsurface drainage systems and
• Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands

[Flysmallie]

The rest of the drivel was the just the use of a lot of adjectives to enhance her political spin.

You can say that about every thing that comes out of a politicians mouth.

Unfortunately you have to have permission to do ANYTHING in the land of the free.

[Al Agnew]

You can say that about every thing that comes out of a politicians mouth.

Unfortunately you have to have permission to do ANYTHING in the land of the free.

Oh, come on, that's not even remotely true. We are still the most free people on earth. The problem is that there are too many of us with too much technology, and our ability to screw things up for other people is greater than it's ever been. Back in the old days, a few people could do stupid things in small streams, but we often didn't know how bad they were, or they just weren't having much of an impact because so few people were doing them. Now, we can mess up creeks in wholesale lots and we know how bad we're messing them up. Either we regulate it to slow down the messing up, or we wait until it's messed up and then sue the people who did it. I'd much rather have the regulations.

[jasperflyfisher]

Technology and more people is the reason for more government regulations?