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Johnny Stevens wrote:
"Recently, the EPA determined that the frequently dry, concrete-lined Los Angeles River meets the agency's definition of "Traditional Navigable Waters." Is this good news, bad news, or does it really matter?" http://www.nytimes.com/gwire/2...ches-regu-42022.html |
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Johnny,
interesting article, though it didn't state the EPA's basis for determining that the LA River is a "Traditionally Navigable Water." Is/was there ever commerce on the LA River? While that determination might change the way the river itself is regulated, I don’t see how that affects regulation of tributaries to the river. There is still a clear, direct connection to the ocean, which has always been a “Traditionally Navigable Water.” |
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On July 20, 2010, Tommy Dye said:
On July 22, 2010, Johnny Stevens said:
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Here is the EPA’s Evaluation Letter that determined that the LA River is Traditionally Navigable:
http://www.epa.gov/region9/med...terandEvaluation.pdf It shows that there is some continued kayaking and canoeing use of the river, even in the dry season. (In the dry season, there is enough water to float provided by sewage treatment plants.) The EPA even mentions that someone floated down the river on a kayak made of plastic bottles. I am not sure what a kayak made of platic bottles has to do with navigability. The EPA’s argument for commercial use is the future potential for commercial recreational kayaking if the City of Los Angeles implements its river restoration plan. This seems like pretty slim justification/determination of commercial navigation of the river. |
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This is a video of EPA Administrator, Lisa Jackson, announcing that the LA River is Traditionally Navigable.
http://lacreekfreak.wordpress....-river-as-navigable/ In part, Ms. Jackson says: “In 2006... the supreme court, in two decisions, cast doubt about when water is water. Those decisions made it such that we couldn’t tell jurisdictionally whether a creek… was water.” It seems like Lisa Jackson misses the point. The argument is rarely whether a stream is “water”. The argument is “Did the Law that the US Congress passed (CWA) give the federal government authority to regulate this water body and the land around it.” |
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The activists love to create straw-men in order to confuse the public.
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I just think it's weird that a stream/river that has a drainage area of 835 sq miles does not at least flow all year. But then again I live and work in a part of the country with average precipitation of 43 inches and it looks like LA averages 15 inches.
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Brandon,
You've got to remember that here in California it usually rains from November through May, leaving us with a dry summer and fall. This also gives us numerous seasonal wetlands and intermittent streams. Out here we're used to rivers dropping to a trickle by August. Also, most of the LA River basin is paved and the stormwater will race out to the ocean, especially in the paved river bed. Very little of the water will infiltrate and sustain later flows. Jason |
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Does any one know what difference it makes that a river can be kayaked all year as opposed to only part of the year when it comes to determining a river is Traditionally Navigable? It would seem to have little to do with demonstrating that there is commerce on the river.
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Here is a pretty good summary of court cases regarding the definition of navigable.
http://usace.army.mil/CECW/Doc...navigable_waters.pdf What it boils down to is if a water could be used for commerce then it falls into the category of TNW. The United States v. Holt State Bank (1926) sums it up pretty good. But lets be honest...how much of our river mileage is currently used (or will ever be used again) for interstate or foreign commerce. Not alot anymore. At least compared to 1700's and 1800's. With the advent of mass railroad and interstate roadways that type of goods transportation has fallen to the wayside. |
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Didn't mean to quote myself guys, just wanted to add aviation to my last post, but hit quote instead.
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Brandon said:
"...What it boils down to is if a water could be used for commerce then it falls into the category of TNW..." Dear Brandon, The designation of Traditional Navigable Waters is largely determined by relevant case law. The EPA/Corps' Jurisdictional Determination (JD) Form Instruction Guidebook – Appendix D, Legal Definition of “Traditional Navigable Waters” which was issued as part of the Rapanos Guidance, instructs regulatory staff to consider relevant court decisions when determining navigable waters: “…Corps districts and EPA regions should be guided by the relevant opinions of the federal courts in determining whether waterbodies are “currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce” (33 C.F.R. §328.3(a)(1); 40 C.F.R. § 230.3(s)(1)) or “navigable-in-fact.”…..” The Fifth Circuit Court of Appeals ruled in Needham that a body of water must be navigable-in-fact and defined this term to apply to waters “when they are used, or are susceptible of being used, in their ordinary condition as highways for commerce, over which trade and travel are conducted. Daniel Ball, 77 U.S. at 563;" The court also stipulated that a “waterway is not navigable where commercial use or susceptibility of use is sporadic and ineffective” .... U.S.A. v Oregon, 295 U.S. 1, 23, 55 S. Ct. 610, 619 (1935).” The LA River is in the Ninth Circuit which is very liberal and this allowed the EPA to designate a dry concrete lined ditch as TNW. The EPA is devoid of intellectual honesty and integrity, and can not be trusted by the American people to be fair and reasonable in adminstering environmental laws. |
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Johnny. I was putting that out there in answer to Andrew's question about kayaking and TNW. The sentence you quoted from me was my synopsis of the cases in Appendix D. As being part of the Rapanos guidance, I think it is safe to assume that those court cases are examples of what EPA/COE use in there TNW determinations.
I think it is ridiculous the way EPA and Corps run around in circles trying to justify jurisdiction based on a significant nexus to TNW's. Then the TNW justificaiton is convoluted as we can all see from the court cases. The whole concept of TNW is outdated in my opinion and should be scrapped when it comes to 404. I mean seriously what does navigability have to do with maintaining the physical, chemical and biological integrity of surface waters. Well I guess if the water is so polluted that it corrodes hulls or catches on fire that could cause navigation issues. |
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