Army Corps of Engineers Flips On Protecting L.A. River Tributaries

LOS ANGELES (CN) - In the latest step in a long controversy over which river lands are protected under the Clean Water Act, The Army Corps of Engineers has withdrawn its decision to declare five Los Angeles River tributaries non-navigable, and thus beyond federal protection.

The Corps responded to an inquiry from retired architect Wayne Fishback, who asked if he could put a horse and cattle ranch on the streamside property he was considering buying in the Santa Susana Mountains.

David Castanon, chief wetlands manager of the regulatory branch of the Army Corps of Engineers, said that "the only areas in the balance are the tiniest, driest washes in the upper watershed." But David Beckman, a senior attorney with the Natural Resources Defense Counsel, said that statement "grossly mischaracterizes the impact [the Corps' decision] would have."

Castanon said the decision focused on five tributaries of the L.A. River, not on the river itself.

"The L.A. River is fully regulated, just like before this decision," he said.

But Beckman said the decision could make it harder to protect the river upstream, and imperil the city's Master Plan, an ambitious campaign to revitalize Los Angeles with a restored L.A. River as its centerpiece. Beckman cited the title of the Corps' decision: "Determination of the TNW [Traditionally Navigable Water] Status of the Los Angeles River."

Fishback is no stranger to land use controversies. In 2006, the Ventura County Environmental Health Division upheld a cease-and-desist order to stop him from operating an illegal dump on his property, which is not far from the property he told the Corps he was thinking of using as a cattle ranch.

William Stratton, the Environmental Health Division's technical services manager, said that Fishback dumped about 80,000 cubic yards of concrete and other solid waste in the canyons and ravines on his property. That amount would fill 25 Olympic swimming pools. Stratton said Fishback has until the end of April to propose a plan to clean up the illegal dump. After that, the EHD may fine him.

The Corps waffled on its initial decision about the L.A. River tributaries after the U.S. Environmental Protection Agency asked for a meeting between the two agencies. The EPA and the Corps plan to meet next week.

Alexis Strauss, director of the EPA's Water Division in San Francisco, said that if the two agencies cannot agree, the EPA may invoke its rarely used veto power by designating the area as a "special case."

Aside from interagency discussion, Strauss said, that would be her only option to reverse the Corps' decision.

"I can either do nothing, or I can call it a special case. It's pretty frustrating," she said.

The designation was based on aquatic regulatory standards introduced by the Supreme Court's 2006 Rapanos decision. That decision dramatically changed the process government agencies undertake to decide whether a body of water is protected under the Clean Water Act.

The act's protections hinge on whether a body of water is considered navigable by boat. The Rapanos ruling complicated the definition of the term "navigable." It also requires tributaries to be "relatively permanent," and wetlands to have a "continuous surface connection to navigable waters." The L.A. River oscillates wildly during the year, between gushing and dry.

In preparation for the Rapanos decision, the EPA estimated that 53 percent of the country's waterways were headwaters, and 59 percent were intermittent. The EPA said that 53 percent would be in danger of losing protection, depending on the outcome of Rapanos and the closely related Carabell case. But the EPA now calls those numbers inaccurate.

Strauss said the Supreme Court decision changed everything.

"In the years since Rapanos, nothing is normal," she said.

Before Rapanos, the decision was obvious, said David Smith, chief of the EPA's San Francisco Wetlands Regulatory Office.

"Anything with a bank and a swale was covered," Smith said.

Castanon said the Corps used to make a call on whether a body of water was federally protected "within a matter of minutes." Now, he said, each decision could take months. "And we've got thousands these calls to make."

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