The L.A. Times reports concerning the uproar in the environmental community over the Army Corps’s draft determination that most of the Los Angeles River is not navigable. The article quotes David Beckman, a senior attorney at the Natural Resources Defense Council, as stating that, "practically speaking, the March 20 decision would open up a number of tributaries and streams to the argument that the Clean Water Act doesn't apply." With all due respect to Mr. Beckman, either he has a different copy of Rapanos, or he is being more than a little disingenuous.
Whether one follows the Scalia or the Kennedy test from Rapanos, the extent of actual navigability of any particular waterway really has little if any role in the jurisdictional analysis under the Clean Water Act. For example, under the Scalia test, the salient criteria for tributary jurisdiction are (1) whether the tributary has a relatively permanent flow, and (2) whether the tributary, topographically speaking, is something that would commonly be referred to as a river, lake, stream, and the like (i.e., not a manmade ditch). Thus, the extent of navigability of the downstream waterway is irrelevant.
A similar result obtains under the Kennedy test, which hinges jurisdiction on the existence of a significant nexus between the nonnavigable tributary and the downstream navigable waterbody. Under the Kennedy formulation, the relevant criteria are the physical, biological, and chemical effects the nonnavigable tributary has on the navigable water way. Again, the extent of navigability of the downstream waterway is largely irrelevant. (It should be noted that the Ninth Circuit, in whose jurisdiction the L.A. River is to be found, has ruled that the Kennedy test is controlling). In theory it is possible that, by deeming most of a river nonnavigable, and thus lengthening the distance between the subject property and the nearest point of navigability, one thereby makes it less likely that the property will have a significant nexus with the navigable portion of the downstream waterbody. But assuming a continuous flow in the downstream waterbody, it is next to inconceivable that the Corps would not find a significant nexus in those circumstances.
None of this should be taken to mean that navigability ought to be irrelevant: in fact quite the contrary, given that the CWA is expressly limited to "navigable waters." But under the current case law, for better or for worse, navigability is just not that important to the jurisdictional analysis. And in any event, Rapanos said nothing about the test for navigability, which antedates Rapanos by more than half a century. Thus, to place the "blame" for the Corps’s redetermination on Rapanos is simply ignorant.