Of nexus and navigability
August 4, 2008 § 5 Comments
Is the Los Angeles River navigable? The recent kayaking adventure, documented here at LA Creekfreak and elsewhere, demonstrated that it is. The Army Corps’ definition of navigability, however, may relate more narrowly to navigation for interstate commerce. Perhaps if people fly in from out of state, spend some money on kayak rentals, sunscreen and snacks, we’ll fit the definition.
Until then, however, we’re stuck with technicalese to protect the River. As the Army Corps has noted, the officially non-navigable reaches of the River remain protected due to their “significant nexus“(link leads to ACOE ppt download on the topic) with the Navigable Water body reaches. Several Supreme Court justices ago, all that was needed to extend Clean Water Act protections to our southwestern rivers was evidence that a waterway was a tributary to a Navigable Water. Now it’s not so clear. I have heard conflicting things about tributaries and their status. A past, present, or potential future “significant nexus” needs to be demonstrated – basically someone has to prove that the degradation of a waterway would impact the water quality of the Navigable Water, and now each tributary to the LA River will need this level of investigation before it attains federal regulatory oversight (which does not guarantee physical protection, a topic for another day).
The 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. And if you go back a few hundred years, the lowest reach of the river was more like a broad wetland and forest floodplain that soaked up runoff like a sponge, with surface waters rarely reaching the ocean. 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. Rivers function to transport water and sediment, dissipate energy, facilitate biological and chemical processes, and support habitat. In all rivers these functions depend upon not only the river’s channel but also its floodplain, and to some degree, its relationship to groundwater. A river is also the sum of its tributaries. The role of tributaries, the floodplain and groundwater may be even more pronounced in our southwestern rivers and streams, and our evaluation of the LA River should be inclusive of these relationships, not as the significant nexus, but as part and parcel of the River itself. This would be consistent with the Clean Water Act preamble, which states a purpose to restore and maintain “the chemical, physical, and biological integrity of the Nation’s waters”.
For many, we would feel a greater level of security knowing the River, in either its current or historic configuration, simply met the criteria of Navigability. Historical data I’ve reviewed provides interesting, if hardly voluminous, evidence of boating (& swimming, not really a regulatory criteria but fun info). Despite the widespread characterization of the LA River as “a river by courtesy at times” that, like its tributaries, “sink(s) into the sand in places…and seep(s) along beneath the surface for miles, to appear again,” (Charles Holder, 1906) the river and its mountain tributaries were popular destinations for fishermen of steelhead trout. Ludwig Louis Salvator*, in his enthusiastic travelogue, Los Angeles in the Sunny Seventies, even references the use of boats to capture these fish:
“…fine brook-trout and salmon-trout are also caught. The latter are usually taken with what are called gill-nets…The net does not touch bottom since the fish swim fairly near the surface, but is stretched diagonally across the stream or a section of it and floats with the current for several hundred yards or even half a mile while the fishermen follow behind in a boat.”
Unfortunately, Salvator does not identify specifically where this boating occurred, speaking only of mountain streams. It seems reasonable to speculate that boats following nets “with the current for several hundred yards or even half a mile” would need to be on a relatively flat reach of a stream, i.e. the Los Angeles River in one of its perennial reaches, such as at elPotrero de los Felizes Los Pescaditos,“a favorite fishing place on the east side of the river opposite Griffith Park”. Speculation, however, isn’t the basis for regulation.
But boating was also known to occur within the lower Los Angeles and San Gabriel Rivers’ floodplains. More quotes from James P. Reagan’s 1914 oral histories:
Mr. J. H. Orr, Compton, R. F. D. 1, 101 Home at Compton.
Mr. Orr has lived in this neighborhood for twenty-six years. In 1889 he says the whole country was flooded and to give an idea of how much water there was, he with some others rowed in a boat from Downey almost to Compton, that is to the S. P. R. R. track, tied their boat and walked across to Compton, bought their provisions and returned in the same way. The water was all over the country for six weeks and nothing could be done…
Mr. Lafayette Saunders, 2303 Atlantic Ave., Long Beach
…I have seen this valley solid across here between these mesas (Los Cerritos and Dominguez Hill) and nearly four feet deep. I rode in a row boat with two other from Long Beach to Wilmington and returned for provisions, and the water was from a foot of(sic) so to three and one-half feet deep.”
Here the boating is seasonal in character and really a response to the natural flood regime, in that lower LA River basin that had one time been like a sponge. Obviously this was not pleasure boating! Reagan also indicated that the Los Angeles River in the Glendale Narrows reach was good swimming:
Mr. Randall H. Hewitt, 529 Merchants Trust Bldg.
…The year 1876 was a dry year and no water flowed below what was called the “Toma” in those days, above the Downey St. Bridge, which is now North Broadway, where the boys used to go swimming….
(the Toma was a dam that diverted water into the zanja irrigation system)
Joe Bernal, Room 53, Temple Block:
Mr. Bernal was seen at his office today at noon. He was born and raised in Los Angeles… In his boyhood days he used to go swimming in the Los Angeles river when it flowed down Alameda Street. (Reagan)
While hardly likely to convince the Corps that the LA River meets their definition of navigability, these historical anecdotes hint at humanity’s relationship to the river’s more complex structure.
Not just the river, all the streams and wetlands of the LA area, really, have already suffered death by a thousand cuts through the draining, channelization and culverting of over 90% of them. The “significant nexus” test here just adds several additional tons of paperwork and bureaucracy under which to bury our remaining waterways.
*Special thanks to Brian Braa, landscape architect, friend, and Seeking Streams cohort, whose research genius found this author & document.
A happy footnote (with thanks to Shelley Backlar at FOLAR for the announcement): The EPA has found its voice and taken over jurisdiction of the LA River and the Santa Cruz River in order to ensure their protection(well, to ensure a process for mitigating any harm to them…)! Now, as to the rest of our Western rivers…..?
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