On Nexus and Navigability: Part 6 – Navigability Now

July 10, 2010 § 4 Comments

Excerpt from EPA L.A. River Navigability Letter - full text below

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 :

Quote - ... the mainstem of the Los Angeles River is a Traditional Navigable Water

And, so search engines can find it, here’s the text typed-out: 

United States Environmental Protection Agency
Region IX
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#].

Sincerely,

Jared Blumenfeld
Administrator, EPA Region 9

Cover of the EPA Report on L.A. River Navigability - featuring images of the 2008 expedition kayakers in the Sepulveda Basin

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:

Boating shown in the approved L.A. City River Master Plan

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.

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§ 4 Responses to On Nexus and Navigability: Part 6 – Navigability Now

  • Rex Frankel says:

    My concern is that this decision to protect the river apparently does not protect the tributaries to the river, just the main-stem. This overturned ruling from 2008 was about a landowner, Wayne Fishback in upper Browns Canyon in Chatsworth who sought to fill in the canyon. The Army Corps removed the protections for the river partly in response to his plans. The latest announcement only declares the river as “navigable” and thus protected from the confluence of the Arroyo Calabasas and Bell Creek all the way DOWNSTREAM.

    This latest action is great for the majority of the river, but it appears to have skirted the reason for the Army Corp’s anti-protection ruling from 2008.

    Can anyone show me I’m wrong, cause I’d like to be wrong on this one.

    I posted the original story on Fishback here:

    http://rare-earth-news.blogspot.com/2008/06/what-looks-like-river-but-isnt-sneak.html

    • Jessica Hall says:

      I’m going to hedge a little here. Pre-Bush, tribs were considered Waters of the US if they drained into a Water of the US. SWANCC and Rapanos decisions created the requirement that the trib demonstrate a the significant nexus to the Water of the US. That still holds. The concern was that with large swathes of the LAR not designated as navigable, even those reaches would have to undergo the signficant nexus test (ie paperwork) for CWA reviews to apply – much less the tribs draining into them. The Clean Water Restoration Act floating around Congress would address the CWA to restore oversight to tributaries, I believe.

      I am still waiting for a stronger way to protect waterways, as even CWA is more a review process than a prohibition of filling waterways.

  • Erik Knutzen says:

    Congrats on your advocacy in making this happen. This is huge.

    The question I have is, does this mean that it’s now legal to kayak the LA river?

    • Joe Linton says:

      In a word, no.

      It’s not 100% clear cut. According to an EPA spokesperson a couple years ago, it’s possible that a river can be traditionally navigable… but not actually be today a place where boating is allowed. He gave the example that if there’s a “No Boating” sign posted… that’s arguably probably a point in favor of boating being possible. It’s possible to have something like dangerous intake valves for a dam – so there’s a legitimate reason for no boating allowed in a specific area of a navigable river.

      There’s a debate on the legitimacy of boating on the LA River today. People do it often – probably a couple people every week. The powers that be (County and Army Corps) say that people need a permit … it’s not clear under what authority they’re able to do this… because there are some kinds of state statutes asserting that surface waters belong to the public…

      So… please go boat on the river… and send us pictures!

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