Not Necessarily Narrowly Navigability
August 9, 2010 § 8 Comments
Here at L.A. Creek Freak, we’re very excited about the EPA’s determination that the Los Angeles River is navigable and is protected fully under the Clean Water Act. It’s a welcome decision, strongly supported by the river’s past, present, and planned future. The determination got the L.A. Times out kayaking the river (watch their excellent video!) and sparked off mayoral, journalistic, and advocate discussions of the river’s bright future.
But… the whole navigability test is… unfortunately… a bit limited.
Is navigability the right test for what streams deserve federal Clean Water Act (CWA) protection? Is the Clean Water Act all we need to restore rivers, creeks, and watersheds? Does a narrow focus on improving water quality get us to a goal of healthy creek and stream ecosystems?
Judith Lewis explores some of these questions in a recent High Country News article entitled A river again? which features Creek Freak’s very own Jessica Hall. Here’s an excerpt:
None of this [EPA L.A. River navigability designation] necessarily means that Obama’s pledge to put science over politics will bring long-term progress on the nation’s water quality. Nor does the decision secure the future of Compton Creek: The state has bought four acres of the creekbed for preservation, but county engineers can still clear any vegetation that might slow rising storm waters and raise ever-higher levee walls against damaging floods. “We still have to collectively decide if we want to dedicate land for riparian functions like floodplains,” says Jessica Hall, [...] a longtime advocate for Los Angeles’ forgotten creeks. Nothing about the EPA’s decision forces anyone to address water quality by restoring creeks like Compton to more natural conditions.
What the decision does do, however, is suggest that EPA scientists are thinking about water and watersheds less narrowly than they have in the recent past. The agency “now considers that there are, within the species of ‘river,’ rivers like the Delaware and Mississippi but also rivers that look and feel differently,” says David Beckman, director of the Natural Resources Defense Council’s water program. And that could bode well for other fickle Western waters — rivers that run bone-dry part of the year and rage with floodwaters the next. Advocates for Arizona’s Santa Cruz River, another river tangled up in arcane legal quandaries about navigability and nexuses, are hoping the Los Angeles River decision means the EPA will stand firm against the National Homebuilders Association, which has sued the agency over its determination that certain segments of the river deserve protection.
From 1972 until around 2006, the Los Angeles River was protected by the 1972 federal Clean Water Act… and look what a picturesque result we achieved!
The federal law is enforced by the California Environmental Protection Agency. CalEPA includes a State Water Resources Control Board with local branches known as Water Quality Control Boards. Here’s the website of the Los Angeles Regional Water Quality Control Board. The functioning of this agency tries to be very scientific and technical, but does end up getting caught up in politics – especially in the politics of who pays for the costs of protecting and restoring environmental health. Unfortunately, following the work of the water boards sometimes seems to take advanced degrees in both chemistry and law.
At this point, Creek Freak dons our jargon-to-English translator hat, to try to outline some of the local Clean Water Act work here. We’re simplifying it greatly, and leaving out lots of important stuff… but trying to keep it pretty suitable for more general consumption.
Despite a long history of legal challenges to the CWA (including plenty by the city of Los Angeles, the county of Los Angeles, and nearly all of the non-coastal smaller cities throughout the county) the act has done quite a bit of good.
In 1972, the United States had rivers catching on fire and plenty of routine industrial pollution being piped directly into waterbodies. The CWA has been a good tool for minimizing these direct pollution sources, like factories. Such a factory is known in environmental parlance as a “point source” polluter. The CWA was responsible for pretty much (but not quite entirely) ending “point source” pollution. Today there are no factories that have pipes dumping pollution directly into the Los Angeles River. There are occasional, generally accidental sometimes intentional, spills which, when caught, do result in prosecution and fines. It’s not perfect, but serious recurring harmful discharges are the exception, not the rule.
Since the early 1990’s, CWA work has shifted to “non-point source” pollution. “Non-point source” pollution is the stuff that comes from activities of thousands of us as we do the activities of our everyday lives in places all over the area. Examples of “non-point source” pollution include grease from automobiles, fertilizers from lawns, litter in our streets, bacteria from dog poop, and much more.
Because they happen all over, we can’t just go to one factory or one home or one road and stop these… we need to either reduce the sources of these pollutants or prevent them from entering our waterways. Because these enter waterways via storm drains which are owned and maintained by municipalities (locally mostly cities, but also the county and our state Transportation Department Caltrans, responsible for freeway drains,) under the CWA, these agencies have been on the hook, legally, for the gunk that pollutes water coming out of agency storm drains.
The 1990’s and early 2000’s included a flurry of challenges to the local water board’s regulations (called “Total Maximum Daily Loads” or TMDLs) at least a half-dozen full-on lawsuits. These were generally filed by governmental agencies (cities and the county) and were against the implementation and enforcement of clean water regulations. The agencies’ concerns are somewhat understandable – they’re charged with providing governmental services within limited taxpayer-funded budgets, so they were attempting to avoid pollution prevention costs, which they perceived to be excessive. Unfortunately the legal wrangling often stalled even relatively cheap small steps toward reducing pollution.
It is notable that some initiatives have moved forward in this climate. Some lawsuits were settled. Some worthwhile pilot projects were implemented. Cities (including Los Angeles, Santa Monica, Long Beach) have taken steps toward funding cleaner water, including the city of Los Angeles’ Proposition O $250million bond measure.
While all this was playing out slowly, locally… there was some serious backsliding at the federal level. Some developers didn’t like the CWA preventing them from filling in wetlands. They sued, fixing on the word “navigable” in the CWA. In 2006, the Supreme Court scaled back CWA protections to only waterways that were “traditionally navigable.” In 2008 the U.S. Army Corps of Engineers (USACE) decided that only four miles of the about-50-miles-long L.A. River were navigable, hence the CWA only protected these four miles and miles directly connected to them.
Last month, the Federal Environmental Protection Agency (USEPA) overruled the Army Corps. USEPA declared the whole river was navigable, and all of it was protected by the Clean Water Act… just like it had been all along… back while, locally, we were fighting legally and dragging our heels to implement a minimum of pollution prevention features.
Note that Creek Freak’s cynicism should not be interpreted at being against the recent EPA navigability determination. It’s great news – really! It prevents some of the worst backsliding and erosion of environmental protections… it just doesn’t guarantee us a rosy future.
Some have suggested that, with a relatively narrow focus on water quality, the Clean Water Act would condone a wholly concrete river, as long as the water running down it was pretty much pure and clean as drinking water.
Let’s start with actual boating. Even with the federal determination of navigability, the L.A. Times couldn’t get a permit to boat in the river. Looks like the USACE memo forbidding boating permits may still be in effect. My suggestion to folks wanting to boat in the L.A. River: print and carry a color copy of the EPA determination letter, and if you are questioned by law enforcement, just show them the letter. This is what I did (I had a copy of the letter with me on the recent L.A. Times expedition – though we weren’t harassed at all, so I never showed it) and it’s what I am planning to do when I kayak the river in the future.
But, to some extent, boating is a distraction here. Boating is a great way to enjoy a river – don’t get me wrong. I highly recommend it. But is boat navigation really the test we want to apply to what streams we protect?
In the Southwest United States, rivers can be a bit fickle. Many flood in the winter and then dry up quite a bit in the summer. Though many, including the Los Angeles River, historically supported boating, some didn’t.
Whether boatable mainstem or intermittent moutain tributary, these natural streams were important features supporting rich ecosystems, important habitat for critters, including Steelhead Trout. Unlike other anadromous fish (northwest Salmon), steelhead can migrate upstream multiple times, because, over millenia, they’ve adapted to be perfectly based in our fickle streams that may or may not have a good flow on a given year.
As I wrote about earlier, the river system of mainstems, tributaries, creeks, washes is a complex interconnected fractal. It’s not holistic to look at it and suggest that protections only apply to certain parts based on being big enough and deep enough to boat on. It’s perhaps analogous to looking at our lungs or our capillaries and saying that we only need the big stuff working to be healthy. Our systems will never be healthy if ignore the details and just focus on the macro.
Another facet of the CWA is to regulate dredging and filling of waterways. The CWA doesn’t completely prevent all “stream bed alterations” (deceptively neutral language, no?), but creates a mechanism for allowing it, if mitigation is done elsewhere. Mitigation being the creation of other habitat somewhere else to offset the habitat to be destroyed. Acting on behalf of the USEPA, the USACE oversees that part of the CWA. USACE issues permits for alterations. This continues to happen today for development along the more wild upper tributaries of the Los Angeles River.
So, the CWA doesn’t actually protect streams, but, theoretically makes sure that if a natural stream is screwed up on my block, then something more or less like it can be re-created on your block. Though this sounds like a decent arrangement (and mitigation has led to some places that I do enjoy – including streams in the Lower Arroyo Seco Nature Park and Golden Shore Marine Reserve wetlands,) but, in practice, it generally means that creek environments lose. Newly minted mitigation projects often lack the complex diverse ecosystem web that they replace. They’re also frequently briefly funded and maintained, then become degraded and forgotten.
So… with the Clean Water Act as it now stands, if we only protect navigable waterways and only focus on the water in them, and we permit folks to fill them in and recreate lesser habitat elsewhere… then we’re likely to stem some of our worst and most destructive excesses… without arriving at healthy creeks and rivers.
The Clean Water Act is one tool. At the federal level, it does complement the Endangered Species Act, the Safe Drinking Water Act, and others. Local municipalities round out the picture with local ordinances. In Los Angeles, this includes the Low Impact Development ordinance (to be head soon in committee) and the Stream Protection ordinance (stalled – let’s revive this!) These laws tend to remain unenforced without a strong push from concerned communities – often in the form of non-profit organizations filing lawsuits.
While we celebrate the EPA’s announcement, we expect that, ultimately, it’s going to come down to those of us who connect with creeks to work hard and to generate the political will for their protection and their return to health.
(This article rests on a lot of shoulders. Thanks primarily to Jessica Hall, many of whose assertions I’ve lifted here. Also Jenny Price and Judith Lewis for helping me to see the limits of the Clean Water Act and the EPA’s recent determination. Thanks to Cecilia Estolano, Mark Gold, and various Regional Water Board and L.A. City Bureau of Sanitation staff for helping me to understand more of the technical and legal issues surrounding water quality.)