[Awclist] Navigability at Issue in Legislature?

Thu Feb 26 18:58:13 MST 2015

http://m.taosnews.com/news/article_68baa688-bbcf-11e4-9c36-27c92c164c80.html?mode=jqm

From: Barbara Deshler [mailto:bjdeshler at gmail.com] 
Sent: Tuesday, February 24, 2015 12:47 PM
To: Robert & Celia Southwick
Cc: Steve Harris; JoAnne Allen; Allyson Siwik; Steve Miller; Noah Parker; Atilla Bality; Verne Huser; Michael Hayes; Jarrett Sasser; Todd Schulke; Dutch Salmon; Steve Verchinski; awclist at swcp.com
Subject: Re: [Awclist] Navigability at Issue in Legislature?

I’m no lawyer, but I do know that “navigable waters” is defined by federal statute (Clean Water Act). As I understand it, the state can strengthen but not weaken protections provided for in federal statutes.

Revisions to the Regulatory Definition of "Navigable Waters"

On November 26, 2008, the Federal Register published EPA's direct final rule to amend a Clean Water Act (CWA) section 311 regulation that defines the term "navigable waters." In this action, EPA announced the vacatur of the July 17, 2002, revisions to the definition of "navigable waters" in accordance with an order, issued by the United States District Court for the District of Columbia (D.D.C.) in American Petroleum Institute v. Johnson, 571 F.Supp.2d 165 (D.D.C. 2008), invalidating those revisions. The court decision also restored the regulatory definition of "navigable waters" promulgated by EPA in 1973; consequently, EPA is amending the definition of "navigable waters" in part 112 to comply with that decision. This final rule does not amend the definition of "navigable waters" in any other regulation that has been promulgated by EPA.

The 1973 regulatory definition of "navigable waters" for the SPCC rule was published in the Federal Register on December 11, 1973 (see  <http://www.epa.gov/emergencies/docs/oil/fr/fr121173.pdf> 38 FR 34165) and reads as follows:

The term "navigable waters" of the United States means "navigable waters" as defined in section 502(7) of the FWPCA, and includes: (1) all navigable waters of the United States, as defined in judicial decisions prior to the passage of the 1972 Amendments of the Federal Water Pollution Control Act, (FWPCA) (Pub. L. 92-500) also known as the Clean Water Act (CWA), and tributaries of such waters as; (2) interstate waters; (3) intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and (4) intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.

Regulation

 <http://www.epa.gov/EPA-WATER/2008/November/Day-26/w28123.htm> Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure Rule; Revisions to the Regulatory Definition of "Navigable Waters"

This rule is effective November 26, 2008.

Fact Sheet

 <http://www.epa.gov/emergencies/docs/oil/spcc/SPCCFactsheet_Navigable_Waters_Nov08.pdf> Revisions to the Regulatory Definition of "Navigable Waters" (PDF) (1 pp, 153K,  <http://www2.epa.gov/webguide/pdf-files> About PDF)

On Feb 24, 2015, at 11:39 AM, R/C Southwick <rsouthwick at ShamanProducts.com> wrote:

Celia posted this on her FB page and the AWC of NM FBpage after getting the Awclist from Steve Harris – used the list of Sen conservation members that the GCC had on the post just below.

From: Awclist [mailto:awclist-bounces at swcp.com] On Behalf Of Steve Harris
Sent: Thursday, February 19, 2015 9:12 AM
To: JoAnne Allen
Cc: Allyson Siwik; Steve Miller; Noah Parker; Atilla Bality; Verne Huser; Michael Hayes; Jarrett Sasser; Todd Schulke; Dutch Salmon; Steve Verchinski; awclist at swcp.com Listserve
Subject: [Awclist] Navigability at Issue in Legislature?

Of importance to boaters and stream anglers: SB 226- which would restrict the recreational use of “private waters” in NM and allow the State Game Commission to determine what waters are navigable- will be heard today in the Senate Conservation Committee, starting around 2:00 pm.  An amendment will be offered by sponsor, Richard Martinez, which attempt to resolve issues raised by OSE, NMAG and myself.  I cannot attend, but will continue to follow its progress.

Since there are lots of legal issues involved in this legislation, I expect that this bill (and its companion HB 235) will be in for a closer hearings in the Judiciary Committees.  It is set in House Judiciary on February 23.

If you have not read the bill and would like to:   <http://www.nmlegis.gov/lcs/legislation.aspx?Chamber=H&LegType=B&LegNo=235&year=15> http://www.nmlegis.gov/lcs/legislation.aspx?Chamber=H&LegType=B&LegNo=235&year=15

>From this page, the link to an older FIR outlines some of the legal issues.

Steve Harris
Far-Flung Adventures/Rio Grande Restoration
HCR 69 Box 3-C
Embudo, NM 87531

home/office: 575-751-1269
fax: same
Mobile: 575-770-2502

 <mailto:steve.harris39 at gmail.com> steve.harris39 at gmail.com

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