I have a friend who builds custom homes. He recently began a project that will end up costing him several million to develop. He has the financing in place along with all the permits. Well, all the permits except one. There is a very small body of water that runs through the property. When I say small, I mean step across the channel. Not hop or jump, but step. Guessing 6 to 8 inches wide flowing water less than an inch or two deep.
Late last week the Army Corps. told him that the water was navigable waters by their definition and he would not be allowed to build anything on the 30+ acres. When asked how they defined navigable waters he was told that "any water in which you can float a toothpick" was navigable. They also were not interested in any sort of buffer. They said no to building anything on the entire property.
Anybody else hearing this nonsense? Have they really stepped that far away from any sort of reality? Plus, do they wait until someone spends 10 or even 100's of thousands of dollars before they decide?
Larry P
"§ 329.4 General definition.
Navigable waters of the United States are those waters that are 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. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity."
...deliberately vague as to afford the bureaucracy leeway to do whatever they want.
I apologize beforehand for turning this political but if I was him, I would get it in writing and then forward that information to my local Congressman, Senator, Governor, Fox News, Sean Hannity, Mark Levine, Mike Huckabee, Herman Cain, Rush Limbaugh. Also every potential Presidential Candidiate in the next election.
The EPA keeps saying that this is not happening, Your friend would have proof that it is. No time better to stop this than right now.
Wendell, feel free to delete this if necessary, My apologies.
James
From the EPA website,
http://www2.epa.gov/uswaters/ditch-myth
>MYTH: This is the largest land grab in history.
> TRUTH: The Clean Water Act only regulates the pollution and destruction of U.S. waters. The proposed rule would not regulate land or land use.
Larry, that's just ridiculous sounding. What basis is there to request any sort of permit from the Corps that the COE have the ability to deny? Are you disturbing the "stream" in anyway? How does the Corps jurisdiction run to the whole 30 acres?
I have worked on many projects that the Corps is involved with in some way and I have never heard such a thing!
What's the "rest of the story," Larry? There is something missing here 😉
Good answer, JaRo
J. McNichols sent me these web addresses and asked that I create links. Not seen where they lead yet.
App D Traditional Navigable
nap.usace.army.mil/Portals/39/docs/regulatory/regs/33cfr329.pdf
I just can't imagine how anyone can say with a straight face that any water in which you could float a toothpick is navigable.
Larry P
> I just can't imagine how anyone can say with a straight face that any water in which you could float a toothpick is navigable.
Unless someone was confusing Navigable Waters with Waters of the U.S. (and stretching that definition to the breaking point). But I still don't see how that would stop a development cold, rather than require mitigation of some sort.
Waters of the United States
40 CFR 122.2
For purposes of the Clean Water Act, "Waters of the United States" means:
(a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(b) All interstate waters, including interstate "wetlands";
(c) All other waters such as interstate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:
(1) Which are or could be used by interstate or foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(3) Which are used or could be used for industrial purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the United States under this definition;
(e) Tributaries of waters identified in paragraphs (a) through (d) of this definition;
(f) The territorial sea; and
(g) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition.
The new regulation that is currently under the public comments process until Oct. 20, 2014 can be found here:
http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm
88 pages three columns wide.
Navigability is generally controlled by State Law these days. I would think a case of Federal over-reach like this would make a few Attorneys very happy...
Roger that Mr. P.
I can float a toothpick in my toilet.
Does that make it navigable? If it were a turd I suppose so.
My guess is that whomever told you about floating toothpicks is full of the same said turds. 🙂 (sorry, couldn't resist that connection)
Tell him to go pound sand by the beach where the good ship "Lolli Plop" is fixin to set sail.
... all puns intended....
E.
> Navigability is generally controlled by State Law these days. I would think a case of Federal over-reach like this would make a few Attorneys very happy...
Tend to agree there on the attorney angle, but my simple mind reminds me that "navigable" tends to mean it was used as a waterway for commerce. AKA, boats moving so they can conduct business and sell goods to other areas. Big rivers and lakes. Little rivers and creeks that can float a toothpick are not navigable waterways, per those rules. Makes sense.
I think that's how the GLO defined it early on, and they ran meander lines along said navigable waterways. If there are no meander lines, then it is does not meet the original GLO definition of "navigable". If the states change the rules I don't know how it applies, but if I bought 30 acres on a river and couldn't get a building permit...... I'd clear cut it, sell the timber, shoot all the deer, cut my losses, and move.
http://www.nap.usace.army.mil/Portals/39/docs/regulatory/regs/33cfr329.pdf
If interested, here is the link.
> There is a very small body of water that runs through the property. When I say small, I mean step across the channel. Not hop or jump, but step. Guessing 6 to 8 inches wide flowing water less than an inch or two deep.
>
> When asked how they defined navigable waters he was told that "any water in which you can float a toothpick" was navigable.
I have a relative in the same position and was reportedly told by the local jurisdiction that a navigable waterway is/was one that "in the course of a year could float a kayak." The creek that runs along the property is literally ankle deep but could probably float a kayak during the spring run-off.
[sarcasm]Bureaucracy is a wonderful thing.[/sarcasm]
> I have a relative in the same position and was reportedly told by the local jurisdiction that a navigable waterway is/was one that "in the course of a year could float a kayak." The creek that runs along the property is literally ankle deep but could probably float a kayak during the spring run-off.
>
> [sarcasm]Bureaucracy is a wonderful thing.[/sarcasm]
I guess them folks who were recently rescued during flash-floods in AZ didn't realize they had a navigable waterway (i.e sere ditch) by their house.
That's pretty similar to what I've always heard. Basically "Can you, at any point in the year, navigate these waters with any sort of craft that can hold a person." If so, it's Navigable. IANAL though.
I'm still wondering what sort of permit request prompted this response from the COE ?? What is their jurisdiction over this project?
Dtp
It's worth noting this is end of summer, in spring a steam of that size might swell to be easily able to support a kayak. Floating a toothpick is obviously ridiculous, and not the official standard, but that doesn't mean the stream is not navigable.
That's what the Johnsons of Uinta County have been asking, $75000 per day fine will get your attention for sure
> I'm still wondering what sort of permit request prompted this response from the COE ?? What is their jurisdiction over this project?
Yea Donald, the circus is leading the crowd here. In our great republic of rattlesnakes & coyotes, the COE has jurisdiction over any tributary water course leading to a "navigable waterway". 90% of the time these waterways are stone cold empty, dry and you'll get a flat tire trying to cross it. We get 9" of rain a year. These parts include the Colorado River, and the lakes along it via dams etc. Includes Lake Powell, Lake Mead, Lake Mohave, Lake Havasu, and stuff down by Parker & Yuma. I think the Flagstaff area, and perhaps Phoenix have similar issues, but the Colorado River is very navigable. I could bring up MI laws, but it's been 11 yrs since I lived there. Pretty crazy there too.
FEMA is leading the circus, the counties have administrative authority, and many folks are caught up in the roller coaster.
I still think the GLO definition of "navigable", is when it was used for commerce. Then it was meandered by those original surveyors. States & counties may change rules, zoning, property grabs, etc.. but I think that is how it "was" defined. I could be wrong. I'll defer to higher powers here, but the man asked a question and that is my answers.
Keep in mind the GLO specifically stated that Surveyors could not determine navigability and the presence of a meander was not such a determination. ..