Cities Chafe at Clean Water Rules for L.A.'s Concrete River

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By Amena H. Saiyid

The L.A. River may be the perfect setting for Hollywood-style car chases, but it’s not your typical river and shouldn’t be treated like one under the law, a group of Southern California municipalities says.

They want the federal government to exclude the concrete-lined Los Angeles River and its paved tributaries from Clean Water Act requirements under an upcoming regulation, a move they say could save them from spending billions of dollars on stormwater controls.

City officials from the San Gabriel Valley Council of Governments say the river and its tributaries shouldn’t be subject to the Trump administration’s upcoming rewrite of the “Waters of the U.S.” rule, which defines the scope of federal protections for wetlands and certain isolated or ephemeral waters. They argue they aren’t “relatively permanent” flowing waters due to the seasonality of storms, don’t support fish or vegetation, and aren’t freely accessible to the public.

Sheila Kuehl, member of the Los Angeles County Board of Supervisors, however, said she opposes efforts to exclude the river from Clean Water Act protections.

“While we might save some money in the short run by reducing the important protections of the Clean Water Act, we would certainly pay later in increased medical costs for Angelenos sickened by polluted waterways, as well as a loss of tourism dollars as fewer people flocked to LA’s famous beaches, lakes and rivers,” she told Bloomberg BNA Sept. 25 by email.

“LA County deserves clean healthy ecosystems,” she wrote. “I will not support any request to exclude a portion of the LA River and its paved tributaries simply in order to avoid our obligations under the Clean Water Act. “

Environmentalists say they will sue to block such a redesignation and want to ensure the law’s requirements apply. Waterways or wetlands classified as waters of the U.S. are subject to Clean Water Act programs and permitting requirements, including those for stormwater.

$6 Billion Price Tag

That means any of the 88 municipalities in Los Angeles County that discharge stormwater to the L.A. River must get a permit. Compliance with this permit means about $6 billion in spending on infrastructure for the San Gabriel Valley Council of Governments to capture stormwater.

It also means monitoring for more than 500 pollutants, constructing recharge basins under parks and parking lots, and installing other green infrastructure methods—such as permeable pavements, rain barrels, and strategically planted vegetation and wetlands—to capture stormwater runoff.

The officials made their pitch to exclude the L.A. channel at a Sept. 19 listening session with the Environmental Protection Agency and the U.S. Army Corps of Engineers, which have started rewriting the Obama-era 2015 Clean Water Rule.

In 2010, the EPA designated the 51-mile stretch of the mostly concrete-lined Los Angeles River a traditional navigable water on par with the Potomac, Colorado, and Mississippi rivers. That designation triggered the Clean Water Act protections for the river. The river often acts as a drainage ditch for stormwater, a major source of pollution in urban waterways, especially in Los Angeles.

Los Angeles County has been defending its stormwater permit from challenges by environmental groups, including the Natural Resources Defense Council, since 2008 on grounds that the controls within the permit aren’t preventing toxic pollutants, debris, and other chemicals from entering its waterways.

The currently stayed 2015 water rule (RIN: 2040-AF30), which the Trump administration vowed to rescind and rewrite, excluded stormwater collection systems on dry land, but was silent on their status when flood control channels are an integral part of a waterbody like the Los Angeles River.

Scalia-Inspired Rewrite Underway

The agencies under President Donald Trump’s directive are rewriting the rule, using as its basis the late U.S. Supreme Court Justice Antonin Scalia’s 2006 plurality opinion in Rapanos v. United States.

That opinion said waters with relatively permanent flow should be considered jurisdictional “as opposed to ordinarily dry channels through which water occasionally or intermittently flows,” such as dry arroyos in Phoenix and the Los Angeles River, according to these city officials.

The EPA and the Corps have indicated they are considering three options for defining waters with “relatively permanent” flows. These would include streams that:

  •  flow continuously,
  •  flow continuously along with those that flow at least three months a year; or
  •  flow continuously along with those that can be considered such, based on their flow, frequency, or connectivity to physical, biological, and chemical features.
“We would like the EPA to critically look at any and all cement sections of all rivers and tributaries in the Los Angeles area and reconsider WOTUS jurisdiction in light of some of the arguments we have made,” Eric Wolf, senior management analyst for the San Gabriel Valley Council of Governments, told Bloomberg BNA in a Sept. 21 email following the public forum.

The storm drains underlying the cities, including South Pasadena, that make up the San Gabriel Valley Council empty into boxed channels that lead into the concrete-lined Los Angeles River, where the flow is controlled by the Los Angeles Flood Control District.

“It makes no sense to apply water quality objectives to an engineered channel,” Diana Mahmud, South Pasadena’s council member and chair of the San Gabriel Valley Council of Government’s water policy committee, told the EPA and the Corps.

Wolf said the river still will be protected under California law. The Golden State also is in the process of revising its definition of what waters would be protected under state law just in case the rewritten WOTUS rule doesn’t protect them.

While aware of the cities’ requests, the board of supervisors for Los Angeles County—which includes the cities that fall within the San Gabriel Valley Council of Governments— hasn’t taken a position, county spokesman Kerjon Lee told Bloomberg BNA.

“This comment and all other comments received during these webinars are informing the thinking of the Army and the EPA as we work to develop a proposed rule for public comment,” an EPA spokeswoman told Bloomberg BNA.

Water Status Mired in Debate

The agency added that it was typical for the agency to receive requests to reconsider the jurisdictional status of waters.

However, Lowell Rothschild, a Clean Water Act attorney in the Austin offices of Bracewell LLP, told Bloomberg BNA that the jurisdictional status of the Los Angeles River and its tributaries has dogged the EPA.

“The question is what would the eventual rule look like and how would the Los Angeles River fare under it,” Rothschild told Bloomberg BNA in a Sept. 21 telephone interview.

He said the Scalia opinion would restrict jurisdictional reach based on flow. To the extent the Trump administration proposes a rule based on flow, it’s very possible a river like the Los Angeles River—and possibly other water bodies that flow intermittently in the arid West—could be viewed as nonjurisdictional, Rothschild said.

“Clearly, the president would prefer a rule that excludes waters like the Los Angeles River that flow intermittently,” he said

WOTUS Can’t Overturn Designation

Unlike Rothschild, Sean Hecht, an environmental law professor with University of California-Los Angeles, said the 2010 designation of the L.A. River cannot be overturned by the water rule for several reasons.

A redesignation, he said, would require a rulemaking other than a WOTUS rule rewrite, just as it did in 2010. More importantly, a redesignation of the L.A. River wouldn’t change the fact that municipal stormwater will still be regulated under a federal permit because it is being discharged into the Pacific Ocean, which is jurisdictional because it in fact supports navigation, he said.

Hecht also dismissed the cities’ claim about the river’s seasonal flows, saying the EPA’s own analysis showed that there are year-round flows.

The NRDC would oppose any attempt to exclude the L.A. River from Clean Water Act protections, Steve Fleischli, the council’s water program director, told Bloomberg BNA.

Fleischli said the cities are trying to skirt their obligations to meet stormwater requirements.

“We will take legal action if [the cities] roll back protections for the river,” Fleischli said.

With assistance from Carolyn Whetzel in Los Angeles

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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