“Abusing discretion” in Bel Air’s Stone Canyon Creek
February 17, 2011 § 1 Comment
A Bel Air property owner is crying “abuse” and seeking to remove all references to Stone Canyon stream and, perhaps more importantly, stream protection from his 2006 development requirements. If this sounds familiar, you may have read about it in the Los Angeles Weekly story about my work, the Lost Streams of Los Angeles, which reported on this actual hearing. Or you may have seen this image of the pipe that was going to be laid in the stream at any of a number of talks I had given around town. Indeed Stone Canyon Creek (and nearby Kenter Creek) has been something of the poster-child for the need for an overarching stream protection ordinance in the City of LA.
The hearing takes place next week – Thursday, February 24, 9:50 A.M at City Hall Room 1050 (200 N. Spring Street, 90012).
So to cut to the chase, the owner contends that it is inaccurate to call the stream a stream, and that it is an abuse of discretion to impose requirements to protect the stream when other property owners have not had this requirement imposed upon them.
Well, it won’t be the first time we’ve noted how someone justifies environmental impacts by ditchifying a creek (1, 2) be it in name or act. The map below should settle the question of accuracy on its own.
However, if you are feeling argumentative consider the definition of a stream adopted by the City of Los Angeles: “a naturally occurring swale or depression, or engineered channel or conduit which carries fresh or Estuarine water either seasonally, year round subsurface…include tributary drainage that carry storm water runoff from any size watershed that connects to larger streams.” I found myself having to enumerate this and other descriptors of a creek to a biologist hired by the property owner several years after the 2006 hearing, who’d called wanting to know how convinceable I’d be that the stream wasn’t a stream.
The City of Oakland also refers to a court case, Locklin v. City of Lafayette (1994), to provide clarity as to their definition of a stream – and take note that they’re saying that if the channel used to be a natural stream then it’s a stream:
“is a channel with defined bed and banks made and habitually used by water passing down as a collected body or stream in those seasons of the year and at those times when the streams in the region are accustomed to flow. It is wholly different from a swale, hollow, or depression through which may pass surface waters in time of storm not collected into a defined stream. A canyon or ravine through which surface water runoff customarily flows in rainy seasons is a natural watercourse. Alterations to a natural watercourse, such as the construction of conduits or other improvements in the bed of the stream, do not affect its status as a natural watercourse.”
This little issue of “abuse”
I suppose it’s a matter of perspective. If you see your neighbors getting away with environmental destruction, you may feel entitled to the same. We have 40 years of state and federal environmental regulations involving waterways – and yet my experience from 2002-2007 revealed not only that these regulations have been ineffectual in preventing a net loss of streams, but that the City of Los Angeles, as the local jurisdiction reviewing building plans for compliance with applicable laws, wasn’t even following through on ensuring that these procedures laid out by state and federal laws were being followed. I saw multiple examples of stream channeling and culverting, in-stream structures, bank and bed alterations that had not been permitted by state authorities but had been permitted by the city. Ideally, the local jurisdiction and state Fish and Game officials would not just seek mitigation for stream alterations but actually work with property owners to maintain the resources on site. But we weren’t even getting mitigation out of what I’d seen, unless an angry neighbor had reported the illegal stream activity to the state.
So if anything the “abuse of discretion” had fallen the other way, towards a failure to protect the city’s streams. This was mainly because streams weren’t mapped or otherwise indicated as streams; when labelled at all, they were often called storm drain easements or ditches – as noted above. And so plan checkers overlooked potential impacts. But even in this Stone Canyon case in 2006, planning staff at the hearing I spoke at stated to the Commissioners that state and federal permitting only was called for if there were endangered species on site. This is not only inaccurate, but could potentially expose the City to liability if they are not rigorous in ensuring that state and federal laws are enforced in the course of their plan check, in the same way that a city exposes itself to liability if it doesn’t meet stormwater requirements under the Clean Water Act or universal access requirements under the Americans with Disabilities Act.
Some cities have adopted stream protection ordinances to ensure consistent compliance with a range of laws, protect groundwater supplies, and improve quality of life. And Los Angeles could have had one too -beginning in 2006 and over a two+year period, the City convened a committee that reviewed ordinances from around the country and drafted a stream protection ordinance. Public input was sought at a series of informational public meetings. A few streams got added to the City’s maps (Navigate LA). Some Bureau of Sanitation and Building & Safety staff seemed sympathetic to the issues and were following through on conferring with Fish & Game. And then, silence on the ordinance effort. Instead the Low Impact Development Ordinance moved to the forefront. The City’s LID shows some progress in our thinking about streams, including language calling for minimizing of impacts to streams, but doesn’t outline prohibitions of development in them.
And so streams will continue to be subject to a case-by-case review, and property owners will cry “foul” over perceived unfairness of how development and protection are being balanced – and good intentions are no substitute for policy. But let’s hope that on Thursday good intentions keep their teeth.
And I seriously hope that others will get fired up to see that creek protection will apply restrictions on development consistently and across the board.
It’s about a hundred years overdue.