Did rogue paddlers, Scalia cement protection for LA River?
A possible survivor of the Trump administration's efforts to limit Clean Water Act protections is a concrete canal that looks more like a highway than a waterway: the Los Angeles River.
The 51-mile river — famous as a soundstage for "Terminator 2," "Grease," "Transformers" and many other movies featuring car chases — also played a starring role in a 2006 Supreme Court opinion by Justice Anthony Kennedy. He used the river to show why Justice Antonin Scalia was incorrect in asserting that only relatively permanent waterways should be shielded by the Clean Water Act.
Ironically, legal experts agree the river may be safe from the Trump administration's bid to bring federal regulations in line with Scalia's vision.
The Obama administration may have sealed the river's protection with a 2010 determination. While the Obama EPA's Clean Water Rule was strongly based on Kennedy's opinion, its 2010 finding that the LA River qualified as a "traditionally navigable water" after kayakers successfully floated its main stem was not.
Most legal experts agree the move will be difficult to undo even if the Trump EPA successfully repeals and replaces the Clean Water Rule, also known as Waters of the U.S., or WOTUS.
"Nobody, not even Scalia, has raised doubts that a 'traditionally navigable water' is jurisdictional," said Ken Kopocis, former deputy assistant administrator in the Obama EPA.
The Los Angeles River is an intensely engineered waterway. It drains an 830-square-mile watershed that includes the San Gabriel and Santa Monica mountains and has a rich, colorful history. It provided water for Native American villages on its banks and then to the first Spanish settlers in the late 1700s.
In the 1930s, violent floods killed 150 people and caused more than $1 billion in property damage. And by the 1950s, flood control concerns dominated as the river was widened and encased in concrete.
Today, just 12 miles of the river retains its natural bottom and banks, and the city is working to revitalize several other stretches of the waterway.
But the river is primarily a stormwater system, fed at hundreds of discharge points linked to more than 80 cites. Legal experts say its Clean Water Act classification sets a precedent for other, comparable river systems across the country.
The river's water flows reflect Los Angeles' boom-and-bust weather.
During most of the year, little to no water runs through it, especially during increasingly frequent droughts. But during heavy rains, the river keeps torrents from swamping densely populated neighborhoods.
That has made the Los Angeles River a prime talking point in legal debates over the Clean Water Act, and what qualifies under its jurisdiction.
In the Supreme Court's 2006 ruling in Rapanos v. United States, Scalia's plurality opinion that earned four votes said the law should cover "only relatively permanent, standing or flowing bodies of water."
In his own opinion, Kennedy joined Scalia and ruled against the government, but he disagreed with Scalia's reasoning. Kennedy established a "significant nexus" test for when a water body qualifies, and said Scalia's definition was too narrow. Under the test, waters with a chemical, biological or surface connection to navigable waters would be covered by the Clean Water Act.
Scalia's "first requirement — permanent standing water or continuous flow ... — makes little practical sense in a statute concerned with downstream water quality," Kennedy wrote.
"The Los Angeles River, for instance, ordinarily carries only a trickle of water and often looks more like a dry roadway than a river. ... Yet it periodically releases water-volumes so powerful and destructive that it has been encased in concrete and steel over a length of some 50 miles."
The Trump EPA has said it will issue a new rule based on Scalia's more restrictive opinion, instead of Kennedy's (Greenwire, April 20).
That has led some to question whether the Los Angeles River determination would hold up.
Kayaking to prove a point
Kayakers from the LA River Expedition (pictured) traveled the 51 miles of the highly industrialized Los Angeles River in 2008 to prove to EPA and Army Corps that the waterway was navigable. The trip may now be critical in maintaining federal protection for the LA River under the Clean Water Act. EPA
There's a lively debate about the river among Clean Water Act experts.
"The Scalia test uses the term 'relatively permanent,'" said Andrew Stewart, a former EPA official now at the firm Vinson & Elkins. "I don't think the LA River is going to pass that test."
Others quibbled with Stewart's reading for many reasons. For one, EPA concluded that the river was navigable, not just jurisdictional. In order to undo that, Trump's EPA would have to promulgate a new rule, then redo the 2010 determination.
"If the determination was based on significant nexus, that would definitely put it in play," Kopocis said. "But now they have a whole record saying it is navigable."
As a practical matter, that would take years, said Bernadette Rappold, a former EPA attorney at the firm Greenberg Traurig.
"That just seems like a giant lift for EPA to go in and revisit this," Rappold said, noting that President Trump has also proposed slashing the agency's budget. "They would have to go in and be surgical about it. And that would seem to require a humongous effort for little deregulatory reward."
Former Army Corps of Engineers officials agreed, noting that the 2010 determination reversed an earlier finding by their agency that just under 4 miles would be counted as "traditionally navigable."
But a corps biologist, Heather Wylie, disagreed with her agency's earlier conclusion. She and kayaker George Wolfe organized an expedition of about two dozen paddlers to float the river's entire main stem.
In July 2008, they completed the trip in three days.
"We not only did that, but we documented it. Wrote up a report and handed it to EPA," said Wolfe, who now leads an LA River Expeditions outfitter. "Two years later, much to our surprise, it turned out that they had us featured in their report."
Wylie would ultimately lose her job for her role in the expedition. But because of their kayak trip, John Paul Woodley, the assistant secretary of the Army for civil works from 2003 to 2009, said it would be difficult to undo the EPA determination because the paddlers proved the river's navigability.