Navigable Rivers and the Clean Water Act

Los Angeles River, courtesy of Wikimedia

The February 2nd edition of High Country News published a great story related to the Rapanos v. United States decision to declare that rivers without navigable status are not subject to the regulation of the Clean Water Act.  This U.S. Supreme Court decision was a hugely important one for those interested in the regulation of pollution in rivers and other U.S. waterbodies.

So what do I mean by navigable rivers? The Clean Water Act protects all waters of the United States from excessive pollution and destructive development for agriculture or urban uses.  Rapanos essentially removed those waters that were not deemed navigable—or unable to accommodate boat traffic—from protected status. In parts of the west that aren’t as blessed with free flowing surface water as the maritime PNW, this is a critical issue.  Desert washes and even tiny trickling streams (in our region) still provide innumerable benefits to their surrounding environment, but might not be navigable, except in cases of flooding.  Wetlands too are affected by the decision, though they often directly connect to rivers during flooding.  This is also frequently the case with most streams in the desert Southwest (my home turf).

The court case revolved around a Michigan shopping center developer named John Rapanos who filled in 50 acres of wetlands without a permit.  He was taken to court and found guilty of violating the Clean Water Act.  The fines were huge.  Rapanos appealed to the U.S. Supreme Court.  The Justice Antonin Scalia’s opinion took the U.S. Army Corps to task for “stretching the term [navigable] beyond parody.”  As a result of the split decision, the two federal agencies with the most power to regulate U.S. waters—the Environmental Protection Agency and the Army Corps—devised a highly technical process for determining the relationship between smaller tributaries (even dry ones) and the mainstem of a stream.  This is known as the “nexus test” (or showing a “significant nexus of relationships between a distant tributary and a receiving water body).  As a result, the agencies have to do a very difficult analysis that has left developers such as John Rapanos scratching their heads.  Rather than clarifying things, the Rapanos decision made the waters considerably murkier.

Once the Rapanos decision became case law, however, the Army Corps was able to remove many streams from protection, meaning that developers could build in the channel itself, and upland pollution sources that affected it would not be governed by the same legal tools as those provided by the Clean Water Act. The EPA too dropped many cases of Clean Water Act violations it had been pursuing because they could not prove a “nexus.”

One Army Corps biologist, Heather Wylie, joined a group of kayakers and canoeists to travel down the largely concrete Los Angeles River in Southern California after it too had been declared non-navigable by her agency.  Their journey was meant to highlight that “navigable” was a more flexible category than the feds had applied to the LA or other major streams in the arid West. For that act, Wylie was suspended and then laid off.  She has since become a symbol to environmental and property rights activists alike.  The story of this relatively obscure court decision and its repercussions for both sides of the debate is worth a read. You can view it by clicking here.  Heather’s story also appears in a short YouTube video titled “Heather and Goliath”.   Below are some other links to the Clean Water Act and the Rapanos decision:

The actual U.S. Supreme Court decision:  http://www.law.cornell.edu/supct/html/04-1034.ZS.html

National Public Radio story: http://www.npr.org/templates/story/story.php?storyId=5226083

Understanding the Clean Water Act (River Network): http://www.rivernetwork.org/rn/cwa/aboutcwa

U.S. EPA Clean Water Act website: http://www.epa.gov/oecaagct/lcwa.html

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