A river again?
by Judith Lewis Mernit
Behind the parking lot of a dilapidated casino in the city of Compton, Calif., runs a few miles of earthen-bottom creek, a tributary to the Los Angeles River, where blue herons alight on graffitied lamp posts and red-winged blackbirds feed among the cattails. Environmentalists have long fought to save this rare patch of urban nature from development, dredging and dumping, not just for the sake of open space in this park-poor neighborhood, but for water quality: Those cattails, for example, consume nitrogen from fertilizer runoff bound for the ocean.
But the creek's defenders have had scant legal basis for their fight: In 2008, the U.S. Army Corps of Engineers decided that only four miles of the Los Angeles qualified as "navigable" under the Clean Water Act, meaning the eight major tributaries of the concrete trapezoidal channel L.A. stubbornly insists on calling a river remained stranded outside the protection of the federal law.
That changed on July 8, when EPA administrator Lisa Jackson stood on Compton's banks and declared all 51 miles of the Los Angeles River a "traditional navigable river." That means Compton and the other tributaries now pass "the Rapanos test" -- named for the Michigan scofflaw in U.S. v. Rapanos who paved a wetland to put up a shopping mall and, thanks to a landmark 2006 U.S. Supreme Court decision, got away with it. Rapanos limited Clean Water Act protection to waterways that have "a significant nexus" to navigable U.S. waters. That the Los Angeles River's tributaries now count among them won't stop every attempt to alter a creek, but it imposes an extra layer of pollution limits, subjecting development plans in the creek beds and floodplains to more lengthy and costly review processes.
"The EPA's decision could set a different paradigm for conservation here," says Meredith McCarthy, the director of programs at the nonprofit Heal the Bay and a key defender of Compton Creek. "We could be moving in the direction of valuing nature in urban centers."
That seemed to be the point Jackson was trying to make, too, in concert with other federal officials accompanying her on a national tour for President Obama's "America's Great Outdoors" initiative. She frankly assailed Rapanos and its companion, U.S. v. Carabell, another Michigan wetland case in which the court ruled in favor of a developer. "Those decisions made it such that we couldn't tell whether a creek like the one we stand before in an urban area was water," she told her listeners. "(But) ladies and gentlemen, this is a watershed."
After her talk, Jackson ventured down to the water. "She put on yellow waders and followed us in," says Miguel Luna of the nonprofit Urban Semillas, who teaches middle- and high-school students to test water in city streams. "The kids got a chance to explain to her what kind of data they were collecting and why."
None of this necessarily means that Obama's pledge to put science over politics will bring long-term progress on the nation's water quality. Nor does the decision secure the future of Compton Creek: The state has bought four acres of the creekbed for preservation, but county engineers can still clear any vegetation that might slow rising storm waters and raise ever-higher levee walls against damaging floods. "We still have to collectively decide if we want to dedicate land for riparian functions like floodplains," says Jessica Hall, a landscape architect with the Santa Monica-based Restoration Design Group and a longtime advocate for Los Angeles' forgotten creeks. Nothing about the EPA's decision forces anyone to address water quality by restoring creeks like Compton to more natural conditions.
What the decision does do, however, is suggest that EPA scientists are thinking about water and watersheds less narrowly than they have in the recent past. The agency "now considers that there are, within the species of 'river,' rivers like the Delaware and Mississippi but also rivers that look and feel differently," says David Beckman, director of the Natural Resources Defense Council's water program. And that could bode well for other fickle Western waters -- rivers that run bone-dry part of the year and rage with floodwaters the next. Advocates for Arizona's Santa Cruz River, another river tangled up in arcane legal quandaries about navigability and nexuses, are hoping the Los Angeles River decision means the EPA will stand firm against the National Homebuilders Association, which has sued the agency over its determination that certain segments of the river deserve protection.
Case-by-case determinations, however, are not the best way to forge national environmental policy. "Sooner or later the Obama administration has got to come in and ask, 'What the hell are we going to do with the Clean Water Act?' " says Pat Parenteau, a legal expert in watersheds and wetlands at the Vermont Law School. "Because right now, water law is a total mess."© High Country News