July 9, 2010

The LA River's navigability: what's the big deal?

By The LA River's navigability: what's the big deal?

Author:  Damien M. SchiffLA River

This week the EPA announced that it was reversing a 2008 Army Corps of Engineers determination that the Los Angeles River (whose headwaters form in the San Fernando Valley and empties some 51 miles away into San Pedro Bay) is not a "traditional navigable waterbody" for purposes of federal regulation.  Angelinos may find the EPA's decision a bit odd, given that, as the Los Angeles Times recently observed, the LA River is known best "as a flood-control channel of treated water a few inches deep flowing between massive, graffiti-marred concrete banks strewn with rotting garbage and broken glass, and occasionally polluted with chemicals illegally dumped in storm drains and gutters that empty into it."

The decision has been applauded by environmentalists as an important move to reestablish strong environmental protections for the River.

For my part, all I can ask is, what's the big deal?

Whether the LA River is navigable probably has little effect on whether it or its tributaries receive protection under the federal Clean Water Act (without question, its navigability has nothing to do with cleanup efforts under the CWA's nonpoint source pollution program).  Further, the River's navigability has nothing to do with protections afforded under state law, such as from the Porter-Cologne Water Quality Control Act or the Streambed Alteration Agreement law.

In short, the only thing the EPA's decision reveals (other than the agency's all too obvious desire to kowtow to environmental groups) is the extremely lax standards for what constitutes "traditional navigability" under the US Supreme Court's precedents interpreting the Commerce Clause.  To be sure, that's an interesting constitutional issue, but it has precious little to do with protecting the LA River from pollution.

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