Last week the LA Times published the following op-ed entitled "Keeping Western waterways clean":
Over the course of almost 40 years, the Clean Water Act -- which compels landowners to secure permits from the Environmental Protection Agency before dredging or discharging pollutants into "waters of the United States" -- has become the cornerstone of our water-quality law, helping states and local governments make development decisions that keep the country's watersheds healthy.
Here in Southern California, the Clean Water Act limits the sewage and industrial waste that flow into streams, rivers and, ultimately, the ocean. It protects washes and other seasonal waters from being bulldozed over, helping to maintain habitat for birds and other wildlife. But today, just as elaborate plans for a long-awaited Los Angeles River restoration have begun moving forward, the river and its already stressed watershed could lose some of the law's protections.
Lay the blame on legalese, courtesy of the U.S. Supreme Court. In a 2006 rulingin Rapanos vs. U.S., Justice Anthony M. Kennedy wrote that the term "waters of the United States," to which the Clean Water Act still applies, should be interpreted more narrowly as "navigable waters" and wetlands with a "significant nexus" to them.
It was left to the U.S. Army Corps of Engineers, which shares enforcement responsibilities for the act with the EPA, to figure out how to define those and other muddy terms, and it chose to do so, critics say, literally and narrowly. By the corps' definitions, according to a memo released June 4, only two short stretches of the Los Angeles River are "traditionally navigable": 2 miles in the Sepulveda Basin and 1.75 miles in Long Beach.
No one knows, just yet, what the consequences will be for Los Angeles -- the river or the watershed -- because the corps has not yet determined whether specific waters are or aren't covered by the act. Once that process begins, the corps says, the entire Los Angeles River should remain protected because it meets the definition of "relatively permanent." People won't be able to start dumping into the waterway with impunity. The corps says that it maintains its commitment to restoring the river, and that it will be open to reevaluating the "navigability" of the currently "non-navigable" stretches.
Still, real threats remain to Clean Water Act protection for the dozens of ephemeral waterways that feed into the Los Angeles River, which may or may not be deemed to share a significant nexus with the traditionally navigable portions of it. Environmentalists and local officials worry that without assurances of the federal protection that has kept these waterways (relatively) clean for more than a generation, people will be free to develop without oversight, and water quality and habitats will degrade bit by bit.
One thing is clear: This is no way to manage one of the most important environmental protections in American law.
Even though their streams and swales are often dry, Western watersheds are integrated systems. Paving over an isolated canyon here and another there can divert waters or create runoff that makes its way to a distant ocean, disrupting wildlife and public health. Making decisions piecemeal -- hoping that the EPA will step in to question permit applications as they surface -- is woefully inefficient at best and insidious at worst. In a desperate effort to get the corps to change its mind about the Los Angeles River's "traditional navigability" and guarantee protection for isolated waters, a few activists have started kayaking down the concrete channels. That this appears to be the most meaningful way citizens can register their concern for the watershed is absurd.
There are better strategies to keep the Clean Water Act strong in the arid West, where waters are more likely to resemble puddles than the mighty Mississippi (the kind of river, incidentally, that lawmakers had in mind when they used terms such as "navigability"):
* The EPA could step up its involvement in making determinations of navigability. While traditionally the agency has deferred to the corps on such matters, lawyers at the Natural Resources Defense Council and other advocacy groups have argued that the EPA has the power to challenge corps decisions. If EPA officials choose not to raise a challenge, they must commit now to carefully reviewing the flood of permit applications that is sure to rise in the coming months. Local governments too must plan to pick up the slack and come up with their own regulations if federal protections are removed.
* Ideally, Congress should rewrite the Clean Water Act in plainer English. Fortunately, the House has already started the process with HR 2421, the Clean Water Restoration Act. Introduced last year by Reps. James L. Oberstar (D-Minn.), John D. Dingell (D-Mich.) and Vernon J. Ehlers (R-Mich.), the bill would replace the term "navigable waters of the United States" with "waters of the United States," restoring the broader, more inclusive pre-Rapanos understanding of the act's jurisdiction. Staff on the Transportation and Infrastructure Committee, which Oberstar chairs, are fielding suggestions for amendments to the bill, which has 174 co-sponsors in the House. We urge the committee to finish its work and get this bill onto the floor as soon as possible, and we call on the California delegation to support it.
All interested parties must collaborate to ensure that, as the corps promises, the restoration of the Los Angeles River will proceed and Western watersheds will remain healthy. Anything less, the Rapanos decision notwithstanding, would be a miscarriage of justice.
(See here for original).
The editorial proceeds upon a number of inaccuracies and false assumptions regarding the Clean Water Act.
First, the editorial strongly implies that the U.S. Army Corps of Engineers’ draft determination that much of the Los Angeles River is not officially navigable will have a significant effect on the federal government’s power to keep that River clean. Under Justice Kennedy’s opinion from the Rapanos decision, that outcome is highly unlikely. See here.
Second, the editorial contends that the Oberstar-Feingold bill, which would extend Clean Water Act jurisdiction to all "waters of the United States" and would eliminate references in the Act to navigability, would "restor[e] the broader, more inclusive pre-Rapanos understanding of the act’s jurisdiction." The assertion is untrue. Prior to Rapanos, it was settled law that jurisdiction required, at the very least, a hydrological connection to a traditional navigable waterway; and further, that isolated waterbodies were not within the Act’s ambit. Oberstar-Feingold would erase those well-established limits to federal power under Act.
Third, the editorial assumes without explanation that environmental protection for all waterbodies in the United States is a federal prerogative, and that judicial construction of statutes limiting federal power in that regard are wrongheaded. But this criticism fails to take account of the federal nature of our system of governance, and somewhat ignorantly presupposes that "no federal regulation" = "no regulation," a false equation in every state of the Union.