I think someone else was asking this and I didn't see an answer:
Even if the stream is 'navigable', how does that preclude use of the entire 30 Acres?
Unless the developer is trying to fill/ do-away-with the presumed creek, he should still have 28+ acres to work with (giving a healthy 2ish-acres to the 6-8 inch 'stream' and allowing for fringe wetlands).
... maybe I'm missing something.
Here in LA, the COE has jurisdiction over any "ditch" that eventually flows unimpeded into creeks, bayous, rivers, lakes, etc (very simplified). But you should be able to get a permit. We do it all day long, 365 days a year (minus holidays) for our industry and O&G clients. The problem lately is the 6 months to a year + for permit approvals. This is due the down sizing of the permit groups.
For them to say no development seems like your friend might be in a wetland.
Such is the fodder that makes attorneys rich in Louisiana. The legal consideration here is was it navigable in 1812 when admitted into the Union as a State? As an extension, "could" it have been navigable in 1812? I believe in Louisiana, that Federal Law is trumped by State Law in this specific case. Elsewhere, I don't know.
I have been involved in at least a half dozen of these over the years. The results are rarely what I expect on both sides of the fence.
Such is the fodder that makes attorneys rich in Louisiana.
Yea bionic, no argument from me. I'm sure you have your share of watersheds in your neck of the woods. The COE & FEMA are a bit over served and somewhat out of control. Oh well.... I'm old now and can't wait to get off that roller coaster.
In my old world of surveying over 25 yrs around some pretty big lakes & rivers in MI, they were all "navigable" and they all were meandered. Sometimes years apart (1800 -1880 range) No original corners ever found, but the records existed. We did our best years later. I just think that the determination of "navigable" was for commerce, and that was the question. If the surveyor could or could not make that determination, I have no idea. To me, the meander line intended a navigable waterway. And old survey crew from 1888 didn't want to swim, then just meander it. Worked for me.
Heck, I did an old survey where the dumb arse set a corner (supposedly) in the middle of a frozen lake. Retrace that in July 100 yrs later. Take a breath, back up, and scratch your noggin. Ice is for hockey, not setting monuments.
Sorry the email doesn't allow emailing of links. Just put http://www. to see what I intended to send you. Sorry
http://www.nap.usace.army.mil/Portals/39/docs/regulatory/regs/33cfr329.pdf
In PA, there are two types of navigable waters:
1) Navigable in fact..."if, in the natural condition, the body of water can support transportation in the DRIEST periods". Because of that, very few rivers in PA are considered navigable in fact. Also, it must be used or have been used for commercial transportation. It must have been used as a "public road" for the transportation of goods between centers of commerce and not just a source of recreation. So, running a kayak down a flooded creek once a year does not make it navigable.
2) Navigable by law...as it states, the legislature decreed it to be navigable. There is a long list of smaller streams in PA that are navigable by law...there was a case a few years ago where a fishing club tried to keep people out of land they owned, but they lost in court because the stream was navigable by law.
I think either your friend or the person who told him this is confused. The Army Corp of engineers does not normally have the power to determine navigability. The definition of navigability varies from state to state. The "float a tooth pick" test is to determine if the water is part of the waters of the U.S., not navigability.
The U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) also use the tributaries portion of the law and regulations to include any waters that could carry sedimentation detrimental to navigation.
This means if muddy water can flow from your property into a ditch which feeds into a natural drainage, which in turn feeds into a stream that will float a boat of any type EPA and USACE have total control of anything you do that may produce sediment.
Think of what that will do to agriculture when these folks tell you that every drainage leaving a farm needs a permit and engineered sediment remediation.
No politics involved both sides have been headed this way for 30 years.
In Illinois, it has been seen as this.......
http://www.dcbabrief.org/vol210509art1.html
But of course the Feds have a different idea......
Larry,
Sadly yes, have seen it and am experiencing it now, they are relying on the Supreme Court "repanos decision" spelling may not be correct. They ultimately claim jurisdiction to water which causes "litter movement". It is very broad and inclusive. Contact your federal representative about the. We have contacted our Rep. Doug Lamar's and he is looking for support to rein in the ACOE.
Being in a coastal area myself and having done countless projects that needed corps approval I've never heard of anything dumber in my life. I've seen creeks that actually were navigable by kayak not identified as navigable. Whoever this clown is his superiors or someone with some common sense needs to be notified. You should try to find out if he's some kind of rabid environmentalist or just has some personal bias against the landowner.
I was told that it is navigable if you can float a mule on a raft down it.
I guess that was a very long time ago.
I'm guessing they actually said no building without a permit.
In many areas there are regional permits in place for certain uses in regard to certain types/sizes of regulatory navigable waters. In that case you don't need an individual permit. So, many people in these areas are working under a permit but never realize it. Then, when they encounter an area where a regional permit is not in place they think it's a new thing to need a permit. Not so. Just have encountered an area where there is not regional permit in place for the proposed use in regard to the water in question.
There is a difference between navigability for ownership versus for regulatory control. To be navigable for regulatory purposes at the federal level the water need only have "some nexus" to navigable waters of the U.S.. Many privately owned or non-navigable in fact or in law waters are navigable for regulatory purposes by the federal government.
The Supreme Court has refused to define navigable for regulatory purposes any more clearly than the above "some nexus" test. So, the EPA is currently trying to come up with a better definition that will pass constitutional scrutiny.
🙂
