My friend and colleague Jonathan Zasloff reports that:
EPA Administrator Lisa Jackson was in Los Angeles today, announcing an official EPA finding that Compton Creek, a portion of the Los Angeles River, is a “navigable water” of the United States. This finding means that Compton Creek can receive the protection of the Clean Water Act: most prominently, it means that any attempts to fill it or otherwise degrade it must receive a Section 404 permit from the US Army Corps of Engineers. It’s an important protection: a nice backgrounder is here.
Jonathan uses the occasion to rip LA Mayor Villaraigosa. Admittedly, always a worthwhile project.
But I want to take a moment to pause and show you what a joke this EPA finding is. Here's a couple of pictures of Compton Creek:
This is a navigable [expletive deleted] river? Navigable by what? A [expletive deleted] rubber duck? It looks to be maybe all of six inches deep in spots.
Yet, because it's now deemed a navigable water, the EPA and Corps of Engineers get to regulate it.
In the case of Compton Creek, maybe that's not such a bad thing. But it's precisely this absurdly expansive definition of what constitutes a navigable water that allows the government to regulate privately owned wetlands almost without regard to how far they are from a river on which you or I would sail anything bigger than an bath toy.
Update: Commenter Joe Linton notes below that it was "the L.A. River was determined to be a traditionally navigable waterway. ... Contrary to your quote from Zasloff, Compton Creek's navigability wasn't determined/announced today (though it is possible and fun to kayak/canoe the area shown in your second photo.) The EPA would now likely protect both of the tributary areas shown, because they could show a "significant nexus" between them and a protected waterway - the L.A. River."
Fair enough. Accepting his emendation actually makes my point stronger. As Richard Epstein explained some years ago in connection with the Supreme Court's decision in Rapanos v. U.S.:
The 1972 Clean Water Act makes it unlawful to pollute "navigable waters without a permit" from the Army Corps of Engineers. "Navigable waters" are defined as "the waters of the United States, including the territorial seas." The Corps' original 1974 regulations stated that these waters included only those on which navigation did or easily could take place. But without explanation the Corps switched gears, so that today they embrace not only all wetlands adjacent to navigable waters -- itself a stretch -- but also every mudflat, slough or prairie pothole in the land. The Corps used this definition to prosecute John Rapanos, criminally and civilly, for filling in a 54-acre saturated plot of land located 11 miles from the nearest navigable river, without showing that any material from the site could reach, let alone pollute, navigable water.
... Justice Kennedy honed in on the irrelevant by asking whether the Corps could establish some "significant nexus" between remote wetlands and navigable waters -- without asking what discharges, if any, could go from one place to the other.
This is the origin of the nexus requirement to which Joe refers. The nexus requirement is so ambiguous, however, that even highly tenuous connections to navigable waters are routinely invoked to justify government regulation of "every mudflat, slough or prairie pothole in the land." Hence, even if the Compton Creek is itself non-navigable, the federal government now is in charge. And that's precisely the problem. The federal government can regulate waters that have nothing to do with any of its enumerated powers.
