On Nexus and Navigability: Part 6 – Navigability Now
July 10, 2010 § 4 Comments
With the above forty-one words restoring disputed federal protections to the Los Angeles River, it’s been a pretty excellent week for local creeks and their human friends. The federal navigability and protection issues were very hot when this blog was getting started back in mid-2008, so it’s a treat to see them resolved this week. We thought we’d do some wrap-up with some of the primary documents behind this week’s announcement and then a round-up of what we’ve written about the issue before. (Also, next week, we’re hoping to do some editorializing about what the determination means for the future… and why navigability as a test for federal protection for clean water may not be the best way forward for healthy creeks.)
First off, the actual document that states that the entire L.A. River is navigable – a 6 July 2010 letter from the U.S. Environmental Protection Agency Region 9 Administrator Jared Blumenfeld to the U.S. Army Corps of Engineers Los Angeles District District Engineer Colonel Mark Toy :
And, so search engines can find it, here’s the text typed-out:
United States Environmental Protection Agency
75 Hawthorne Street
San Francisco, CA 94105-3901
Jul 6 2010
Office of the Regional Administrator
Colonel Mark Toy
District Engineer, Los Angeles District
U.S. Army Corps of Engineers
P.O. Box 532711
Los Angeles, California 90053-2325
Dear Colonel Toy:
This letter transits the Clean Water Act (CWA) jurisdictional determination for the Los Angeles River. On August 17, 2008, EPA’s Assistance Administrator for Water designated the Los Angeles River as a “Special Case” as defined by the EPA-Corps 1989 Memorandum of Agreement (MOA) regarding coordination on matters of geographic jurisdiction. Pursuant to the MOA, designation of the “Special Case” made EPA responsible for determining the extent to which the Los Angeles River was protected as a “water of the United States.” Specifically, EPA analyzed the river’s status as a “Traditional Navigable Water,” one of several categories of jurisdictional waters under the Act.
We conclude that the mainstem of the Los Angeles River is a “Traditional Navigable Water” from its origins at the confluence of Arroyo Calabasas and Bell Creek to San Pedro Bay at the Pacific Ocean, a distance of approximately 51 miles.
In reaching this conclusion, Region 9 and Headquarters staff considered a number of factors, including the ability of the Los Angeles River under current conditions of flow and depth to support navigation by watercraft; the history of navigation by watercraft on the river; the current commercial and recreational uses of the river; and plans for the future development and use of the river which may affect its potential for commercial navigation. Available evidence on each of these factors indicates that the Los Angeles River mainstem possesses the physical characteristics and past, present or future use for navigation consistent with a “Traditional Navigable Water.” This analysis is summarized in the enclosed document, “Special Case Evaluation regarding the Status of the Los Angeles River, California, as a Traditional Navigable Water.” Please let me know if you would like to receive the underlying data and analyses.
This report consitutes the position of the federal government on the CWA jurisdictional status of the mainstem of the Los Angeles River, and its transmittal concludes the “Special Case” process. If you have any questions, please contact me at [phone#] or Jason Brush, Chief of the Wetlands Office, at [phone#].
Administrator, EPA Region 9
The “Special Case Evaluation regarding the Status of the Los Angeles River, California, as a Traditional Navigable Water” report referenced above is a 38-page pdf available at the EPA’s website. We haven’t read every word of it, but the report features great information on river flow quantity, lots of pictures of the 2008 kayak expedition, and more. L.A. Creek Freak isn’t mentioned by name, but we’re there in a footnote, having submitted comments during the EPA’s decision-making process.
There’s a great deal of background information available at L.A. Creek Freak regarding all the navigability stuff. Here’s an overview of those articles:
>The 2008 kayaking expedition was covered day-by-day in three sucessive blog articles. Kayaking Day One goes from one end of the Sepulveda Basin to the othere. Kayaking Day Two goes from Sepulveda Dam to Marsh Park in Elysian Valley. Kayaking Day Three goes from Marsh to the river’s mouth in Long Beach.
>Of Nexus and Navigability – Part 1 – On Our Woebegone Waterways – lays out the basics of the nexus to navigation as a protection criteria, explores the historically dynamic character of the L.A. River. An excerpt:
The [L.A.] River, like so many southwestern rivers and streams, had a great deal of variability to it. Some reaches may have been more like washes, where flows infiltrated into the groundwater; other reaches had perennial water flow. … These waterways were incredibly dynamic, shifting course when log jams or sediment would build up, forcing a new direction for the water to spread. Our mistake is in defining the river exclusively as the channel where we see water.
>Of Nexus and Navigability – Part 2 – Journalistic Journeys – covers historic river navigation accounts from the L.A. Times and L.A. Weekly. An excerpt:
[from the L.A. Times 1 April 1925] Your intrepid correspondent dumped the water out of his boots and came ashore, thoroughly satisfied that the Los Angeles River has been grossly wronged and maligned. It has water in it, contrary to all reports otherwise – wet water, cold water and muddy water. And it can be navigated.
>Of Nexus and Navigability – Part 3 – The Boater, the Biologist, and the Blogs – tells the stories of how George Wolfe put together the 2008 expedition and how US Army Corps Biologist Heather Wylie lost her job when her superiors spotted internet photos of her kayaking. An excerpt:
I met up with George for a trial run a week ahead of the expedition. We put in just below the Los Feliz Boulevard Bridge and kayaked down to the best rapid on the whole river, just below Marsh Park in Frogtown.
>Of Nexus and Navigability – Part 4 – Action Alert – foretells the boating in the river’s future plans, and encourages readers to submit comments. An excerpt:
All the future plans for the river approve increased recreation usage. Sometimes this explicitly includes navigation/boating. For example, the city of Los Angeles’ Los Angeles River Revitalization Master Plan, in its future vision for the Chinatown/Cornfield opportunity area (chapter 6, page 30), states ”On most weekends in good weather, kayakers in great numbers flock to this area for a chance to paddle in the River.”
>Of Nexus and Navigability – Part 5 – USACE: no ifs ands or boats! - focuses on a telling US Army Corps of Engineers email sent out in response to a Conan O’Brien river canoeing video. An excerpt of the USACE email:
… boating of any sort is NOT PERMITTED in the river — no ifs, no ands, no buts — no boats/boating, kayaks/kayaking, canoes/canoeing — no floatable vessels of any sort. No swimming either.