U.S. Army Corps of Engineers Turns Dry Desert Rivulet into “Navigable Waters”

In the middle of constructing the connector road to the new St. George Airport in the summer of 2010, the U.S. Army Corps of Engineers asserted jurisdiction over the area and ruled that Section 404 permits (pertaining to excavation or fill materials “in wetlands, streams, rivers, and other U.S. waters”) previously issued to the state for the road work near a dry desert rivulet were issued in error. The ruling by the Army Corps ground construction of the airport access road to an abrupt halt costing the state, Washington County, the City of St. George, and local businesses untold millions of dollars.

Local officials protested the action in writing also addressing the “rumor” that the Corps intended to designate the Virgin River, which on a good year has barely enough water in the summertime for inner tubers to float, as a “Navigable Waterway” under the Clean Water Act (CWA). Major General Grisoli of the Corps responded that “the Corps is not evaluating the Virgin River as a navigable river.” 
 

The State and the Utah Department of Transportation appealed the jurisdictional determination and even the South Pacific Division of the Corps remanded the jurisdictional determination back to the Sacramento Office for their further review. The Sacramento Office then eventually ruled in favor of UDOT’s appeal regarding its 404 permits but, incredibly, ruled that the Virgin River was “Navigable-in-fact” and that any future appeal or determination of jurisdiction would be based upon the Virgin River as the nearest navigable body of water – instead of Lake Mead, as had previously been the case, (and was the basis of the successful UDOT appeal). 
 

The adverse potential of this ruling is huge! The Supreme Court decision in the Rapanos case stated that for a piece of land to be federally jurisdictional under the CWA, a significant nexus must exist between the land/water in question and “a navigable body of water.” By the Army Corps of Engineers determining that a nexus need only be established with the only-occasionally-inner-tube “navigable” Virgin River, a much smaller threshold by orders-of-magnitude, they can now classify all of Washington County as “jurisdictional” and effectively subject to their federal (read preservationist and obstructionist) “zoning and planning” veto authority.

Experience indicates that greater federal control over land access and land use will only increase uncertainty, paperwork, costs and delays; decrease access and beneficial use of public and private lands; and further stifle job and economic growth in Washington County.

If you are concerned about such expansive federal intrusion to local jurisdiction over land access and land use, join me as we organize the Land Use Policy Group of ALC.

Alan Gardner
Utah, Washington County Commissioner