ELR Citation: ELR 21456
No(s). 90-82-CIV-FTM-17 (M.D. Fla. May 4, 1993)

The court vacates a U.S. Army Corps of Engineers' (Corps') determination that Fisheating Creek in southern Florida is a navigable waterway of the United States. Relying on historical records, military activities, official government surveys, the Corps' investigations, aerial photographs, Corps and Coast Guard bridge permitting determinations, activity by the state of Florida, observations by area residents, and other evidence, the court finds no evidence that the creek was ever used to transport goods or people in commerce. The court finds that in its ordinary and natural condition, the creek does not have a well-defined, passable channel, and its water levels are not able to sustain commercial navigation on a predictable and reliable basis. Evidence of navigation during periods of flooding or abnormally high water, recreational canoe trips, and noncommercial fishing trips do not support a conclusion that the creek has been used or is susceptible of being used for commercial navigation. Additionally, a joint state and federal program for eradicating hyacinth that involved nonnavigable water bodies and interests other than navigation is not probative of the issue of navigability. Finally, the court holds that a land-locked waterway with no direct navigable link to interstate or foreign commerce is not a navigable waterway.

Counsel for Plaintiff
Charles W. Pittman, Harold D. Oehler
Macfarlane & Ferguson
2300 First Florida Tower
111 Madison St., P.O. Box 1531, Tampa FL 33601
(813) 273-4200

Counsel for Defendant
Carl Strass, Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000