WATER:

EPA declares L.A. River 'navigable,' stretches regulatory reach

Film buffs might recognize the Los Angeles River as the gigantic concrete gutter used for car chases in "Grease," "Terminator 2" and other movies.

But the river is something else for U.S. EPA: "a traditional navigable water."

EPA Administrator Lisa Jackson's declaration of the cement-lined channel today as "navigable" is aimed at allowing her agency to enforce Clean Water Act protections throughout the river's 834-square-mile watershed.

"This designation assures the community that their local waters are protected by the nation's water laws," Jackson said in a statement. "A clean, vibrant L.A. River system can help revitalize struggling communities, promoting growth and jobs for residents of Los Angeles. We want the L.A. River to demonstrate how urban waterways across the country can serve as assets in building stronger neighborhoods, attracting new businesses and creating new jobs."

Environmentalists cheered Jackson's declaration as key to limiting destruction of the river's tributaries and wetlands and expanding recreational opportunities for Los Angeles residents. They also said the move shows that Western rivers, despite their propensity to run dry because they are overtapped for irrigation and drinking supplies, deserve full protection under the Clean Water Act.

Recent Supreme Court rulings have strictly interpreted "navigable" as the means of determining which water bodies deserve federal regulatory protections aimed at limiting industrial discharges and protecting wetlands.

Repeated efforts by Democrats in Congress to strike the word "navigable" from the Clean Water Act and expand federal regulatory power have failed in the face of intense opposition from agricultural lobbyists and other industry opponents. The most recent effort appears stalled (E&ENews PM).

The L.A. River's new designation represents a dramatic change from two years ago, when the Army Corps of Engineers proposed declaring limited stretches of the river navigable.

"All of this is just a case study in how messed up the law has become," said John Devine, a senior attorney with the Natural Resources Defense Council. "The government has to go through all this effort to do something that we had taken for granted before these Supreme Court decisions to protect headwater streams of a major river system. What it really does is underscore the need to fix the problem."

Others characterized the move as an example of regulatory overreach.

“My impression is it’s a ditch, a concrete ditch,” said Daniel Riesel, an environmental attorney in New York who has represented major developers and agricultural interests on Clean Water Act issues.

Whether a water body is “navigable” will depend far more on its historic use as a commercial waterway, Riesel said. Jackson’s declaration on Thursday, he predicted, would do little to change that.

“The administration’s declaration that something is a ‘navigable water’ is merely a policy statement that they’re going to treat it as one,” said Riesel. “Whether it is or was a navigable body of water is a fact. Her declaration doesn’t change that fact. It’s like her saying, I’m going to declare that pigs will fly. You can, but it doesn’t change the fact.”

Litigation over what waters should be deemed "navigable" has created a logjam that has forced regulators to delay or drop hundreds of investigations, even as pollution rates have risen. The confusion stems from two Supreme Court decisions -- Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 and Rapanos v. United States in 2006.

"In the arid West in particular, there are ecologically important river systems which don't have water in them all year around, or which have different amounts of water in them all year round," said David Beckman, senior attorney and director of the water program in Los Angeles for NRDC. "But this doesn't diminish the importance of a river from the environmental perspective or from an economic perspective for the communities that depend on them."

EPA is currently looking at another river, the Santa Cruz in Arizona, to evaluate its legal status as a "traditional navigable water," EPA spokeswoman Enesta Jones said.

Jones said the definition of "navigable" includes rivers, lakes and other waters that are currently used, were used in the past or are susceptible to use in the future for commercial navigation.

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