Author: Damien M. Schiff
The LA River has been getting a lot of attention these last several years. First, it came up in Justice Kennedy's concurring opinion in Rapanos, as an example of a waterbody that doesn't flow all year round but that nevertheless can have a significant environmental impact (because of winter flash floods, etc.). Then, the river hit the news again when the Army Corps announced that only four miles of the river was navigable in fact. That decision spurred protests from the environmental community which, wrongly in my view, equated the navigability determination with a "hands off" conclusion under the Clean Water Act. Recently, EPA Administrator Lisa Jackson reversed the Corps' finding, based in part on a disgruntled EPA employee's decision to kayak the entire length of the river to prove its navigability. The Huffington Post reports Administrator Jackson taking the position that now, not only is the entire length of the river regulable under the Act, but its 834 square mile watershed as well. That can't be right. After all, the Kennedy significant nexus test from Rapanos makes the nexus to a traditional navigable water a necessary but not sufficient condition to jurisdiction (although note that a continuous hydrological connection is not necessary). Accordingly, simply because the entire LA River is now deemed to be navigable (by kayak at least), does not mean that every ditch and rivulet that contributes water to the river is also regulable. Although undoubtedly, EPA wishes it were so.