Army Corps finds environmental humor unfunny: Conan O’Brien and Los Angeles River navigability
As Holly has mentioned, last month, Conan O’Brien made humor out of the navigability of the Los Angeles River by attempting to canoe down it. Holly’s post describes the legal controversy over the “traditional navigable waters” determination for the L.A. River, an appeal of which is still pending. (I note that there’s a small error in Holly’s post: the Army Corps decision she links to isn’t the final one by the Army Corps, and in its final determination the Corps actually changed its mind in part, finding that a stretch of the LA River, far upstream in the Sepulveda Basin, constitutes “traditional navigable waters.” [Clarifying update: also, the Corps in that same document found that a stretch of the river in the estuary area is a TNW. Thanks to George Wolfe for noting that I omitted this.])
The navigability finding may have important regulatory consequences for minor tributaries and attenuated wetlands. And the entire L.A. river itself, along with all its major tributaries, will certainly still be considered to be under federal jurisdiction. [I could explain that, but that’s for another blog post! UPDATE: I explain this in a general way in a comment below.]
Nonetheless, the Army Corps’ determination, currently under review by the EPA, that the vast majority of the river is not considered “traditional navigable waters,” has rankled environmentalists and may still have regulatory consequences.
Actual boating in the river surely provides some good evidence that the river is “navigable in fact” and thus should be considered “traditional navigable waters.”
It appears, however, that whatever permission O’Brien received to canoe on the river was not met with happiness by Army Corps management. This post by Joe Linton of the L.A. CreekFreak blog includes in its entirety an e-mail from Corps management that indicates that all filming permits within the Army Corps’ L.A. River jurisdiction must be vetted at the highest levels of the regional Army Corps district office. The e-mail states, among other things:
It is the policy of this District that boating of any sort is NOT PERMITTED in the river — no ifs, no ands, no buts — no boats/boating, kayaks/kayaking, canoes/canoeing — no floatable vessels of any sort. No swimming either.
I strongly suspect, as Linton does, that this was a response to the O’Brien sketch that appeared on TV days earlier. I am aware of others’ recent requests to boat in the river, as well as an expedition last year that was apparently intended, among other things, to demonstrate the river’s navigability. The Army Corps has responded negatively to all these developments. Given that the Army Corps appears to be interested in preventing anyone from boating in the River, I suspect the O’Brien piece puts them in an awkward position. Presumably, someone at the Corps district office approved the filming of that, and it is at odds with the Corps’ own position that boating isn’t allowed.
In the end, I have to think the stretches of the river at issue here cannot be deemed non-navigable simply because the Corps refuses to let people boat on it. The Corps’ decision finding that most of the river is not at traditional navigable water relies at least in part onthe Corps ‘ finding that “[t]here is very little evidence of historic navigation along the Los Angeles River.” But if current and recent navigation have been blocked by the Corps, that is hardly a sound basis for decision.
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Sean B. Hecht is the Co-Executive Director of the Emmett Institute on Climate Change and the Environment, Evan Frankel Professor of Policy and Practice, and Co-Director o…
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Sean —
Thanks for the update and correction! I’m a bit confused by the ACE’s attempts to prevent boating (not to mention swimming and filming) on parts of the LA River that it doesn’t consider navigable. Where would it get the authority to regulate use of a waterway that’s not under federal jurisdiction?
Re: “stretches of the river at issue here cannot be deemed non-navigable simply because the Corps refuses to let people boat on it.” It seems like the E.P.A. agrees with you on this. In a public meeting late last year, E.P.A. staffer David Smith made it clear that a “no boating” policy actually was evidence in favor of navigability. He stated that the E.P.A. wasn’t deciding whether boating was a good idea or should be allowed – only whether it was/is/will be navigable.
From an earlier Creek Freak blog post of mine (at http://lacreekfreak.wordpress.com/2008/12/03/of-nexus-and-navigability-part-4-action-alert-tell-the-epa-to-protect-the-la-river-and-tributaries/ ), I’ve listed the EPA navigability criteria he stated:
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?
Holly,
The whole LA river is federal jurisdictional waters – that’s not in dispute, regardless of whether any stretch of the river is “traditionally navigable.” The “traditional navigable waters” determination doesn’t define the limits of federal jurisdiction. And the Corps’ decision was only a determination of TNW status. A non-TNW water will nonetheless be under federal jurisdiction if it’s a “reasonably permanent water,” or, under the Kennedy test from Rapanos, if it has a “significant nexus” to a TNW downstream from it. Under these tests, there’s no question that the whole LA River, all the direct tributaries, and many seasonal tributaries should still be federal jurisdictional waters under the current Corps determination. But in the context of the application of the significant nexus test to determine whether there is federal jurisdiction over remote, seasonal tributaries or wetlands, it’s possible it will make a difference where the nearest downstream TNW is.
Thanks, Joe. That’s very interesting. It does seem to me that Army Corps actions to restrict access and boating could negatively affect criteria #2 through 4 on that list, depending on how those criteria are interpreted. But I hope that’s not what EPA means by those criteria.
Sean –
I’m still confused. Although I agree that the test of navigability-in-fact isn’t the end of the story for Clean Water Act jurisdiction, the Clean Water Act is also not the source of Corps of Engineers jurisdiction over inland navigation regulation. States, not the federal government, typically regulate access to waters that are not traditionally navigable for canoeing, kayaking, swimming, and fishing, don’t they? Why does the Corps think it has authority to regulate access to a water it deems not navigable?
Holly,
Thanks. That’s a different question from what I thought you meant – I’m sorry for not reading carefully. It’s a good question. And I don’t have a good answer for you. The Corps may be wrong. This is something I feel like I should know, especially since I have worked on issues relating to the river. But I don’t.
The Army Corps shares with L.A. County the jurisdiction over “operation and maintenance” of the river channel. (The State of California has no direct role in this, as far as I know.) The Corps acts in conjunction with the County to regulate access. Cities also have a regulatory role. My impression is that the Corps believes it has ultimate authority over public access, but I’m not sure whether the County agrees, or whether the Corps’ view is correct in any event. (It seems to me that the County ought to be the primary permitting authority since it’s the County’s flood control district, and/or that cities that own the channel would have some authority over access, but I don’t have any specific authority for this.)
Whatever the scope of the Corps’ authority, it relates to the special relationship between the Corps and the LA River under the federal Flood Control Act of 1936, and the subsequent activities of the Army Corps, which channelized the river in concrete (completely reshaping it) and continues to maintain it as a “flood control channel.” [Blake Gumprecht’s excellent history of the LA River, The Los Angeles River: Its Life, Death, and Possible Rebirth, http://www.amazon.com/Los-Angeles-River-Possible-Landscape/dp/0801866421, covers the channelization and much, much more at pp. 173-233. But I don’t think it explains the regulatory structure that governs the river. ]
This excerpt from the County’s LA River Master Plan sort of explains the way the river is governed – but not clearly enough for me: http://dpw.lacounty.gov/wmd/watershed/LA/LARMP/LARMP-08%20Jurisdiction%20and%20Public%20Involvement.pdf.
I’d be interested in comments from anyone who can explain the regulatory structure here, and in particular who has authority to regulate public access.
More from a non-lawyer river activist who can’t quite answer the question: I, too, am curious exactly where the Corps (USACE) or County Flood Control District (LACFCD) get the actual legal authority to limit access… maybe there are other legal doctrines (like public trust?) that might challenge this?
My understanding is that when the state established LACFCD after the 1914 floods (I think in 1916 or 1917) some of the state jurisdiction over the waters of the state were relinquished/transferred/assigned(?) to the local district.
Portions of the river were “improved” at different times, under different relationships between USACE and LACFCD. Some areas are maintained/administered by one or the other agency, based on the original maintenance agreements at the time of construction. You can actually tell who maintains an area based on graffiti. USACE maintains only flood capacity, which is unaffected by graffiti, hence USACE-maintained areas are largely covered with graffiti. LACFCD is a little closer to the voters, and paints out graffiti.
My guess is that, at least until Rapanos, much of the reluctance toward nearly all access from both agencies was out of a desire to limit liability. These agencies take some responsibility for public safety on the rivers they’ve “improved” – as, now and then, during flood stage, kids will try to boogie board, etc. in them, and will generally be killed. Supposedly one’s heirs can’t sue when one drowns on an unimproved river, but one can potentially sue when agencies have made a waterway more dangerous.
I don’t think that a zealous concern for safety explains the strong reaction to boating in the current memo. When a group of kayakers applied and re-applied for our permit last year, we tried to show that we were safe by including a physician on trip, wearing prescribed safety gear, etc., but we were still denied a permit.
And book-wise: though Gumprecht is the best book on the history of the LA River, there’s also ‘Hazardous Metropolis’ by Jared Orsi that’s an excellent history of L.A. flooding and the flood control responses.