On July 7, 2010, EPA Administrator Lisa P. Jackson designated all of the Los Angeles River a “Traditional Navigable Water,” strengthening environmental regulation not only for the river, but also for the tributary streams and wetlands that comprise the Los Angeles River watershed. EPA’s designation supersedes a prior determination by the Army Corps of Engineers that less than four miles of the 51-mile, mostly cement-lined river were navigable, which could have cleared the way for developers and industry. Now, however, developers and businesses that operate along the river, as well as those that impact water in the 834 square miles of the river’s watershed, will have to consider the implications of compliance with the Clean Water Act (“CWA”).
Navigable Waters of the United States
Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve this goal, the CWA prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters,” except in compliance with the CWA. 33 U.S.C. §§ 1311(a), 1362(12)(A). The CWA defines the “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). Two exceptions to the CWA’s pollutant discharge prohibition are: (1) the National Pollutant Discharge Elimination System (“NPDES”) permit program under Section 402 of the CWA; and (2) the “dredge and fill” permit program pursuant to Section 404 of the CWA. These programs are triggered by a determination from the EPA that the body of water is “navigable.” 33 U.S.C. § 1362(12). Thus, the determination is a jurisdictional threshold. In comparison, California’s Porter-Cologne Act authorizes the State Water Resources Control Board to regulate “all waters of the state,” which is defined as “any surface water or groundwater, including saline waters, within the boundaries of the state.” Cal. Water Code § 13050(e).
Under the CWA, “navigable water of the United States” includes the following: (1) water that is presently used, or has been used in the past, or may be susceptible for use to transport interstate or foreign commerce; (2) all interstate waters including interstate wetlands; (3) all other waters such as intrastate lakes, rivers, streams (including intermittent streams), and wetlands, the use, degradation, or destruction of which could affect interstate or foreign commerce including any such waters which are or could be used by interstate or foreign travelers for recreational or other purposes, or which are used or could be used for industrial purpose by industries in interstate commerce; (4) all impoundments of waters otherwise defined as waters of the United States under the definition; (5) tributaries of waters identified in paragraphs (1) through (4); (6) the territorial seas; and (7) wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (1) through (6). 33 C.F.R. §§ 328.3(a)(1), 329.4. EPA based its designation of the Los Angeles River on several factors, including the current and historical navigation of the river by watercraft, the current recreational and commercial uses of the river, public access, susceptibility to restoration, and the presence of ongoing restoration and educational projects.
Impact of EPA’S Determination on Dischargers and Developers
Now that the EPA has designated the Los Angeles River as a “traditional navigable water,” it is up to the state of California to determine if the river qualifies as an “impaired water” according to Section 303(d) of the Clean Water Act. If the state makes this determination, it will then have to establish Total Maximum Daily Loads (TMDL) for all pollutants that are found in unacceptably high concentrations. This means that the total daily maximum discharge amount for each pollutant will need to be allocated among all those discharging into the river.
Furthermore, point source discharges into the river will be required to obtain an NPDES permit pursuant to Section 402 of the CWA. The cost of these permits and the amount of time that it takes to get a permit approved vary depending on nature of the discharger and the daily volume of discharge.
Also, according to the EPA’s “Rapanos guidance documents,” the designation of the Los Angeles River as a “traditional navigable water” makes the river, the tributary streams, and the wetlands adjacent to it (including any adjacent wetlands that do not maintain a continuous surface connection with the river) subject to CWA Section 404 permitting. According to the guidance documents, any relatively permanent non-navigable tributaries of the river and any wetlands that maintain a continuous surface connection with such tributaries are also subject to Section 404, which regulates the issuance of permits for the discharge of dredged or fill material.
Although Ms. Jackson believes that “[a] clean, vibrant LA River system can help revitalize struggling communities, promoting growth and jobs for residents of Los Angeles,” the consequences of EPA’s designation remain to be seen, especially given the potentially far-reaching impact of the designation on developers and businesses.
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This article was originally published by Bingham McCutchen LLP.