Of Nexus and Navigability: Part 4 – Action Alert: Tell the EPA to Protect the LA River and Tributaries

December 3, 2008 § 1 Comment


Creek Freak readers have finally arrived at the fourth and as-of-yet-final part in our series on the navigability of the Los Angeles River, and how that affects the protection that our local waters are afforded under the federal Clean Water Act.  This is the episode where you dear reader get to participate!  If you’ve missed out on any part of the scintillating series, by all means use the links below to refresh your memory.  If you’re an action-oriented person who doesn’t want to read through another excessively verbose Creek Freak blog, just skip to the bottom and write your letter/email!

Part 1 – Of Nexus and Navigability, a lament for our waterways
Part 2 – Journalistic Journeys
Part 3 – The Boater, the Biologist, and the Blogs
Part 4 – Action Alert (You Are Here)

Boating in the Los Angeles River's Future - the Los Angeles city plan for the Chinatown Stretch

Future Boating in the Los Angeles River - Image of the Los Angeles city plan for the Chinatown/Cornfields Stretch

Of Nexus and Navigability – Part 4, Action Alert

For extended background discussion of navigability and how it impacts waterway protection, please see Part 1, where Jessica has explained it all concisely.  Creek Freak will now recap a bit and bring the story up the present day.

The 1972 federal Clean Water Act says that all the “navigable waters” of the United States need to be swimmable and fishable – which is to say safe for human health and for nature’s health.  For 30+ years the Clean Water Act has gradually worked to prevent many of the worst excesses of Los Angeles River pollution, but it has been a thorn in the side of folks who see environmental regulations as a unnecessary expense.  A recent supreme court ruling, called “Rapanos v. United States,” narrows the definition of which waterways are federally protected.  Protections are now limited to only “traditionally navigable” rivers and waters with a “significant nexus” to a navigable waterway.

This year, the Army Corps of Engineers made a determination that only two stretches of the Los Angeles River are designated as navigable: the Sepulveda Basin and the river’s mouth in Long Beach.  Army Corps staff maintained that the river itself is actually still protected – because a few miles of it are traditionally navigable, and the rest of it has that “significant nexus” with the navigable parts.  Techincally, the Army Corps actually didn’t make a navigability determination for most of the river – they didn’t declare the rest of the river non-navigable, they just didn’t decide… though, in effect, their limits of their ruling suggests that  the rest of the river is not clearly navigable.  The biggest problem with all this is not so much that the river itself isn’t protected, but that the smaller probably-not-particularly-navigable tributaries won’t be protected, hence they can be filled in, culverted, degraded, and otherwise mistreated.

Creek freaks, river advocates and other environmentalists see this determination as a serious erosion of the legal protections.  Similar protection rollbacks have been decried on the Santa Cruz River in Arizona.  If determinations like this stand, there are implications for other waterways throughout the country – especially in the Southwest, where our rivers and creeks are often drier, flashier and less clearly navigable than those on the east coast.

A navigability decision is supposed to include historical uses as well as future plans.  Creek Freak’s readers are familiar with some of the extensive history of boating (see Part 1 and Part 2 of this series.)  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.”  The plan’s images clearly show boating – see above and below.

Looks like navigation to me - boats in the middle left of LA City's Master Plan for the Chinatown/Cornfields

Looks like navigation to me - Boats in the middle left of image from the approved LA City River Master Plan for the Chinatown/Cornfields Stretch

Dismayed Creek Freaks and allies took to our kayaks and our pens (well, probably mostly computers these days) to push against the narrow navigability designation.  Santa Monica Baykeeper, Heal the Bay, Natural Resources Defense Council and others encouraged the Army Corps to not be so limited in what they were designating navigable.  When the Corps wouldn’t budge, the same organizations encouraged the Environmental Protection Agency (EPA) to override the Army Corps.  Good news!  The EPA recently decided to make the Los Angeles River a “special case,” so the EPA gets to make the determination.

At a recent meeting of the city of Los Angeles’ Ad Hoc Committee on the Los Angeles River, the EPA’s regional wetlands chief David Smith presented on how his agency will make their determination.  His presentation is posted on-line (two versions, basically the same content: a powerpoint presentation or a 2-page document.)  The EPA is looking for the river to meet four criteria to be designated as navigable – and, if you’ve been reading Creek Freak’s series, you know that the river meets all these criteria:

1. Is there sufficient river flow and depth to support boating?
2. Is there a history of boating on the River and for what purposes? What recreational or commercial uses are made of the River?
3. Is there public access to the River?
4. Are there plans to improve or restore the River to increase navigation potential?

The regional EPA folks plan to make their reccommendation by beginning of 2009.  This recommendation will then go to EPA headquarters in Washington, D.C. for review, with a new determination expected probably in the first half of 2009.  The EPA is seeking input on their decision.  While they’re expected to come down on the side of more river designated navigable, they will need to be able to show public support for that determination.  If you want to support and protect the Los Angeles and other rivers, please write a letter or an email to the EPA’s David Smith.  If you’ve boated the river, please let him know.  If you support planned boating in the river’s future, please let him know.  Creek Freak has composed the following fairly-generic comment letter – please personalize it by putting it in your own language.  Submit letters to the EPA by mid-December.

**12/3/2008 – Correction: this is an important meeting that’s still happening – but it’s not about navigability.  Navigability meeting is a different one planned for December 16th – more info about that soon!   Also, plan to attend the city of Los Angeles’ public meeting this Thursday night from 5:30pm to 8:30pm at the Metropolitan Water District in downtown Los Angeles.  The meeting will include an EPA presentation on navigability and an opportunity for public comment on the issue.

sample letter:

David Smith
EPA Region 9
75 Hawthorne Street (WTR-8)
San Francisco, CA 94105
Re: Los Angeles River Navigability

Dear David Smith –

Thank you for the opportunity to comment on the Environmental Protection Agency’s (US EPA) review process evaluating the navigability status of the Los Angeles River.  I encourage US EPA to ensure that your results protect the Los Angeles River and it tributaries to greatest extent possible under federal law.

The Los Angeles River is clearly navigable.  The current and past flows of the Los Angeles River are and have consistently been sufficient to support small boats, including kayaks and canoes.  The history of the river, from the 1800s to the present day, includes many accounts of boating.  Plans for the river’s future call for greatly increased recreational use, including boating.

The Los Angeles River is today an important resource for people and for nature.  A great deal of public and community investment is successfully bringing the river back to life.  Please respect these efforts by making a determination that protects and restores the river’s health.

[your name and your address]

Comments can also be submitted via email at smith.davidw@epa.gov.  Whether you mail or email, if you’re up for it, please copy creek freat at lacreekfreak@gmail.com.  We’ll check with you first, but we hope to use some of the letters in a future blog entry.  Send your comments in today.

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