Classic Villaraigosan Environmental Policy

Compton Creek

EPA Administrator Lisa Jackson was in Los Angeles today, announcing an official EPA finding that Compton Creek, a portion of the Los Angeles River, is a “navigable water” of the United States.  This finding means that Compton Creek can receive the protection of the Clean Water Act: most prominently, it means that any attempts to fill it or otherwise degrade it must receive a Section 404 permit from the US Army Corps of Engineers.  It’s an important protection: a nice backgrounder is here.

And there was Villaraigosa, standing right next to Jackson.  The Mayor certainly made sure that everyone knew he would be there.  Earlier in the day, he sent out a press advisory heralded a “major announcement” with Jackson, and blogged about it (or had a staffer blog about it) on the Huff Po.

Great — except what precisely is he going to do about it?  Why is it relevant to the policy of the City of Los Angeles?

Well, the City could fork over some restoration money — unlikely in this budgetary environment.  Or it could do some serious organizing around the project.  Or the Mayor could personally do some fundraising for it.  Or he could ensure that every member of Congress that represents the area (all of them Democrats) could know about this project and support it.  Or a whole lot of things.

What we get is this:

Working with community partners and the federal government, we can make the LA river a place where Angelenos hike, picnic, swim, and fish together.

That’s it. No action plans, no follow-through, nothing.

I think that Villaraigosa would be happy if the Los Angeles River was restored.  But what will he do?  Cue the crickets.

UPDATE:  Okay, I wrote too fast, straying into an area I don’t know much about (the Clean Water Act) in order to make a point about something I do know about (local environmental policy).  Administrator Jackson said that a finding that the entire LA River is “traditionally navigable” would put it and all its tributaries under federal jurisdiction.  But as Sean argued some time ago, that’s not really the issue because there are a lot of hooks for federal jurisdiction aside from navigability: there may be some regulatory implications, but the feds have a lot of authority either way.

If Sean is right, which I suspect is the case, then the whole Compton Creek thing was a pure photo-op; if Jackson’s statement is right, then as far as Villaraigosa is concerned, it’s still a pure photo-op, because he still has no plan for advancing the ball on the issue.

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Reader Comments

10 Replies to “Classic Villaraigosan Environmental Policy”

  1. A shallow and intermittent stream like the LA River is only considered navigable waters in places like California, where the courts and populace have succumbed to the maddening ignorance and distorted logic of radical environmentalism. Elsewhere in America, federal courts do not support the EPA’s expansive definition of navigable waters and only apply this term to waters that are actually navigable by watercraft for trade and travel in interstate commerce. California citizens are increasingly reluctant to see their tax dollars wasted on bogus regulatory concoctions such as EPA’s definition of navigable waters.

  2. bqrq, you are simply incorrect. The Supreme Court’s opinions in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, United States v. Riverside Bayview Homes, and Rapanos v. U.S., and other federal court decisions implementing that decision across the US, have not limited the definition of “navigable waters” in the way you indicate. And nine Supreme Court justices – while disagreeing with one another in the Rapanos case about the precise limits of federal jurisdiction- have made clear that federal jurisdiction applies to many, many bodies of water that are not “actually navigable.”

  3. Dear Professor Hecht;

    It is my understanding that federal CWA jurisdiction may apply to water bodies that are not actually navigable, but only if these bodies are relatively permanent waters.
    Justice Scalia writing for the plurality in Rapanos, stipulated that ephemeral and intermittent streams, ditches, and other such channels that periodically provide drainage for rainfall, are not subject to regulation as “waters of the United States”:

    “…The phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans, rivers, [and] lakes,” Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall…”

    There are reports that the LA River is often dry for extended periods and is not relatively permanent waters. The LA River does meet the plain meaning of “traditionally navigable waters.” This is why I believe that EPA’s designation is bogus and without merit, and this is typical of many EPA actions.

  4. dndobson —

    You are right to point out the LA River Master Plan. But in my view, this just underscores my point about Villaraigosa. In order to move things, he has to really push, elevate the issue, jawbone the County, the Corps the EPA, and the Council. He hasn’t, and shows no signs of doing so. I hope I’m wrong, but what he really seems interested in is the photo-op. That’s done, so now he’s off to another one.

  5. bqrq,
    Your position and focus have changed rather dramatically between your two comments above. Your first comment’s statements about what courts outside California do, and about what the legal term “navigable waters” means, are all still incorrect.

    But your second comment also is fundamentally wrong, factually and legally.

    First: The Scalia opinion in Rapanos does not articulate the test applied by courts to determine whether there is federal jurisdiction over a waterbody. Some courts have applied only the test set forth in the Kennedy opinion, and others have found that a waterbody that meets either the Kennedy test or the Scalia test will be subject to federal jurisdiction. As far as I know, no court has ever adopted the Scalia test as the limit of federal jurisdiction over waterbodies.

    Second: Scalia’s opinion in Rapanos doesn’t support your analysis. In footnote 5, his opinion says: “By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months—such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent (hereinafter the dissent), post, at 15. Common sense and common usage distinguish between a wash and seasonal river. ”

    Third: the LA River actually runs with continuous flow all year anyway.

    There is no question under any reasonable definition – and under Scalia’s test – that it fits the definition of “relatively permanent waters.” And that’s not even what the EPA was assessing here; it was assessing whether the river is a “traditionally navigable water,” a narrower class than “relatively permanent water.” The legal relevance of that determination is that under the standard for jurisdiction articulated by Justice Kennedy in Rapanos (and adopted by virtually every lower court in the country as sufficient to confer federal jurisdiction), whether any tributary or related wetland has a significant nexus with a traditional navigable water is a critical component of determining whether that other waterbody is subject to federal jurisdiction.

  6. Dear Professor Hecht,
    I concede that the LA River may be relatively permanent waters, based on the information you provided and other information that I have read which indicates that wastewater discharges maintain relatively permanent flow in this water body.

    However, the LA River is not a highway for watercraft that transport goods and passengers in interstate commerce. The EPA defines the LA river as “traditional navigable waters” because it sometimes has enough water to float a plastic kayak. This expansive definition could apply to most ditches in America. The EPA’s definition is arbitrary and expands the geographical boundaries of CWA jurisdiction based on unofficial agency guidelines.

    There is no official regulatory definition of “traditional navigable waters” that has been promulgated in accordance with the rule making process of the Administrative Procedures Act. The EPA’s application of this term to the LA River is absurd and defies common sense.

    I suspect that Mayor Villaraigosa would like to put this incident behind him and hope that his constituents forget about it, because it would be very difficult for him to explain to ordinary citizens how the the LA River is “traditional navigable waters.”

  7. bqrq

    It’s amazing, you have done it again. How can you be so wrong about so many things?

    I’m no lawyer, but I find the phrase “significant nexus” helpful. Tributaries like Compton Creek are protected because otherwise polluters could just dump waste into a drainage like Compton Creek (or a ditch) that feeds into protected waters, like the LA River, which feeds into the Harbor. Similarly, if a polluter pumps waste underground, but the underground reservoir is hydro-logically connected to a river or stream or tributary, it would fall under the CWA.

    You are right about the run-off in the LA River. There is lots of it. Interesting question about how much of that water originally came from the Owens or the Delta. Rivers around here can be plum full–gorged on snow melt–as they run through the mountains, but when they hit the alluvium at the mouth of a canyon, everything drains into the ground.

    But a stream does not have to run all year to be covered by the CWA. And it is not just California. Think about what is happening in Appalachia. Those are ephemeral headwaters but CWA fill permits are required for MTR operations to dump overburden into the valleys and bury the streams. Those permits (historically, often rubber stamped)have been required for decades. This is why Bush changed the federal regulations defining fill, allowing what some courts had called waste to be used as fill, or more to the point, legalizing the granting of fill permits for the express purposes of waste disposal. Think about last year’s mining case up in Alaska. Holly has some great discussion of that on this blog.

    The EPA declared the LA River navigable along its entire 51 mile length. It is my understanding that the main practical consequence will be to place restrictions on development near the headwaters in the western San Fernando Valley. To my mind, potentially a good thing. We have enough sprawl, there are better development alternatives and LA definitely needs open space.

    But the declaration was also clearly political. People have fought for this river for a long time. It’s a big deal in LA and the administration knew it would be a popular move, more popular than consequential, so an easy move to make.

    The declaration coincided with a conference last Thursday at Occidental College, part of a “listening tour” for the administration’s “America Great Outdoors (AGO) Initiative”.

    http://www.doi.gov/americasgreatoutdoors/

    Lots of cabinet-level folks were there–not just Jackson, but Salazar,Nancy Sutley of CEQA and others. But I came away feeling like this was a performance scripted for a campaign year. Pie-in-the-sky and more about presenting the administration in a good light than any concrete ideas. (Caveat: I was not there for the entire event.)

    I attended a breakout session led by Jared Blumenfeld, Regional Administrator for U.S. EPA in the Pacific Southwest. He said one of the proudest accomplishments of his life was signing the paper that declared the LA River a federally navigable waterway. But just a bit later someone (not me) brought up the Santa Clara. The Corps wants to channelize a major chunk of it to allow for increased development up there. The Santa Clara is the last free-flowing river in Southern California, a river that follows a dramatic fault through a lot of very pretty undeveloped land, a river that built those delta agricultural lands spanning from Oxnard to Camarillo to Ventura, a river where a few of the of Southern California’s 500 remaining steelhead still come to spawn. But Blummenfeld just seemed bored.

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Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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