U.S. Army Corps' L.A. River Decision Could Speed Development Along Nation's Rivers

This month, the U.S. Army Corps of Engineers, which regulates U.S. waterways, rendered a decision regarding the navigability of the L.A. River. The classification of the L.A. River as "non-navigable" under the Clean Water Act defines the limits of the Corps' authority to permit development along the river and appears to directly impact efforts by the city of L.A., FOLAR, and others engaged in reclaiming the L.A. River. What was the basis for the Corps' decision?

The Army Corps decision is based on an interpretation of the Clean Water Act, following guidance derived from a recent Supreme Court case called Rapanos vs. United States. This recent determination of "navigability," which is a term of art and has legal implications, is fundamental to some later determinations that will significantly impact tributaries and streams. We don't yet know what determination they'll make on those tributaries and streams, which would be subject to development permits and, therefore, possibly a permit from the Army Corps of Engineers. This determination could severely limit the reach of their jurisdiction.

The Army Corps has the ability to regulate the waters of the United States. If an entity or an individual wants to develop property that has naturally occurring water of some type on it, and if it connects to a water under federal jurisdiction, then they must apply to the Army Corps for a dredge-and-fill permit under Section 404 of the Clean Water Act. Then the Army Corps decides whether or not they're going to issue that permit, which requires a level of environmental review. In deciding whether to issue the permit, the Corps has to first decide if the water on the property is under the jurisdiction of the federal government. There are other levels of government that may also have a type of jurisdiction, but only the Army Corps issues the "dredge-and-fill" permits.

The federal government's jurisdiction is over "navigable" waters, a term which has been extensively examined and interpreted in many legal cases and regulations. Deciding whether water is "navigable" is based on an examination of facts and applying the established criteria to those facts.

In looking at the L.A. River and making a determination about which sections of the river are "traditional navigable waters," they're setting the stage for later determinations as to whether or not the tributaries and streams in the river watershed are subject to their jurisdiction. In limiting it in the way they did, we fear that there may not be the level of federal protection that there was before. From what we can tell, there are about 400 permits that are in the system now for decision by the Corps, so it is significant if there's no requirement for a permit for all or most of those.

What are the larger urban planning and water quality impacts of the Corps' L.A. River decision?

In a worst-case scenario, the impacts are severe in terms of water quality. If they find that none of the 400 permits are subject to their jurisdiction, thus allowing development and allowing streams and tributaries to be paved over or destroyed, it reverses so much of what we've been trying to do in the city lately, which is to undo all the paving-over that took place in the middle of the last century, an example of which is the very L.A. River itself. We're now embarked on an intensive effort to pilot new street designs that facilitate stormwater infiltration, create a more natural process design, which would clean the contaminated run-off before it flows into the river and then the ocean, and un-pave the river, as much as possible. To not have that level of protection would constitute a reversal and go against the grain of our greening efforts in the city. It would also make it harder for us to comply with the regulatory requirements for cleaning up urban run-off, which are imposed by the state through the TMDL program.

We are still working with all speed and diligence on our river revitalization plan, and we expect and hope that the Army Corps will continue on their partnership in that with us. They are committed to restoring areas that are identified in the plan, but the impact of their decision on the water quality of the entire watershed-and therefore, the water that flows into the river-could be significant.

What case and controversy led the Corps render this decision, and what is your assessment of their analysis and conclusion?

They are making the decision because of a property owner who wants to develop upstream of the Sepulveda Basin, in the area where the river has its start in the Santa Susana Mountains, north of the Chatsworth area. There are streams on that property that feed into the river. In order to decide whether or not they had jurisdiction, they looked for the closest traditional navigable water, which they declared to be the Sepulveda Basin.

Their analysis is too narrow. It might be seen as an overreaction to the Rapanos case, which basically signaled to the Corps that they had been extending their jurisdiction too far. Up until the two Supreme Court decisions that came out recently, the Corps had been expanding their jurisdiction. The Supreme Court signaled to them that they had to rein it in.

They are going too far in the other direction, and they haven't really followed the applicable guidance appropriately. By that I mean there was an official guidance document that was issued jointly by the EPA and the headquarters of the Army Corps of Engineers, in the summer of last year, interpreting the recent, more restrictive Supreme Court cases.

Even with that administrative guidance, however, the L.A. River would qualify as a navigable river. The published guidance would allow a recognition that, with a seasonal water body like the L.A. River and its tributaries, even if you can't navigate the full extent of the river, it still qualifies. They could look at information of any light craft that went anywhere down the river as evidence, but they don't even have to have actual evidence of that, because as long as it was capable of supporting that kind of navigation, it would qualify. Also, any historical and/or future uses of the river should be taken into account in order to determine whether it falls into the category of that legal term of "traditional navigable water." They overlooked important aspects of the pre-engineered history, before the Army Corps channelized it and changed the character of the river itself. And in the guidance it states that, if it would be susceptible to navigation in the future, it would qualify. So they seemed to have overlooked the full and very real potential of the river revitalization efforts. Those items of information are very important to this determination.

They also overlooked the Glendale Narrows, where natural conditions have persisted despite channelization and which should clearly qualify as a traditional navigable water, looking at how it is today. They say they are continuing to look at other parts of the river, and that they are continuing to gather evidence. We hope as they do that they will realize that the entire river should be declared a traditional navigable water. The fact that they did not do so when they had the opportunity to in their recent determination is the concern.

As you suggested, a number of environmental groups are already asserting that the Corps' ruling will make it easier for developers to permit large areas of the Santa Susanna, Santa Monica, and San Gabriel Mountains. To what extent is that true, and what does the Corps' decision portend for reopening the open space versus development debate that has dominated Metropolitan L.A. for decades?

This determination could definitely set the stage for more development. I have to emphasize that we don't know for sure, because they haven't yet started making their decisions, but the determination signals that that may be where they'll go. It sets the stage for uncontrolled development in those areas unless there are other types of restrictions. One such restriction, for example, could be for a local municipality to set its own policies on how to develop property in a stream area. That is certainly something that municipalities should take a serious look at.

In California, stream protection ordinances or creek protection ordinances are only in place in Northern California. We've been looking into doing the same here in L.A. , which will help a lot; but even if an ordinance is enacted, it would only apply to areas within the city of L.A., and the river runs through other municipalities. I don't think stream protection is under consideration for any other municipalities which have the river watershed in their boundaries, right now.

You sit on the city of L.A.'s Board of Public Works and are a past president of Heal the Bay. With this background, how might the Corps' decision influence policies and development along this region's waterways and beaches?

The potential impacts are significant. We have been moving toward a healthy and whole watershed orientation for some time, and this recent decision is a step in another direction. In my view, the whole river should be declared a traditional navigable water. That would allow a decision that the streams and tributaries that connect to it would be protected and that any development in those areas would have to be done in an environmentally sound manner. It would recognize that the entire watershed is connected and that what happens upstream has significant water quality impacts downstream.

This is something that Heal the Bay has worked toward for about 20 years now-recognizing that what happens in Pacoima or Glendale or anywhere upstream affects the beach. A piece of litter in Pacoima ends up on the beach. By the same token, if you allow the habitat and the natural flow of water to be changed in the upper watershed, it will impact the watershed, the river, and the health of the coast and oceans. We've been spending so much time trying to restore those elements that to lose any momentum in that regard would be a shame.

TPR interviewed L.A. City Engineer Gary Lee Moore last spring, after the L.A. River Revitalization Master Plan was released for public review. Setting aside the Corps' recent decision, what is the status of the L.A. River Revitalization Master Plan (LARRMP)?

We are in the process of implementing it on a number of levels. We have local funding for a number of river projects, including parks and bikeways. We have money dedicated from Prop O to the Taylor Yards site. We had money awarded for green elements to a two-mile West Valley bikeway project from Prop 50. Money from Prop 12 went into an MRCA project for green elements in a new bikeway area in Elysian Valley. Since the plan's adoption in May 2007, the city has been awarded more than $6 million in funding from the state-including $1.35 million from the Santa Monica Mountains Conservancy for the Sunnynook River Park near the Glendale/Hyperion Bridge and a recent Prop 50 award of $2 million to the North Atwater Park Expansion project.

The LARRMP also called for greening the neighborhoods along the river, recognizing the connection between areas that take water in through street run-off and how that impacts the river and, ultimately, the ocean.

We've been implementing our Green Streets initiative in neighborhoods along the river. One such project was completed on Oros Street last year. We were recently awarded $500,000 by the Coastal Conservancy to retrofit an area in the Elysian Park neighborhood on a street called Riverdale. We'll be changing the design of the street so it will absorb water and filter it naturally before it goes into the river.

We're also working on the governance structure. We have been negotiating a cooperative agreement with the county of L.A. We're also developing a River Revitalization Corporation, which will be like an economic development corporation, similar to the CRA/LA. The CRA/LA is the lead on that. We expect that to be founded in a few months.

We're also diligently developing a nonprofit river foundation to work on the public outreach and awareness components of the planned development. It will help build a bridge between the existing nonprofit groups that are working along the river, and it might take on some projects of its own. We're developing that with input from focus groups that we have held with foundations as well as the current stakeholder groups.

We have a $25 million federal authorization for the river under the Water Resources Development Act, and we've also got some money for an ecosystem restoration study that the Army Corps is undertaking. I hope the Corps takes all that into account when they consider their jurisdiction over the river watershed.