What’s Coming Down the River – How EPA’s Designation of the Los Angeles River as a “Navigable Waterway” May Impact Future Development

As reported by the Los Angeles Times, the U.S. Environmental Protection Agency (EPA) designated the entire 51-mile, concrete lined Los Angeles River a “traditional navigable water,” under the Clean Water Act on Wednesday. Although it may be hard to picture the Los Angeles River as a navigable waterway on par with the mighty Mississippi, EPA made the designation based “on a myriad of factors including the river’s current and historical navigation by water craft, current commercial and recreation uses, and established local plans for restoration of the river.” The designation clarifies the Los Angeles River’s legal status under the Clean Water Act and strengthens the protection to the small streams and wetlands that make up the 834-square mile Los Angeles River watershed. It also helps ensure the health and safety of those who use the river. While many Angelenos have reason to applaud this designation, it may make it more costly and difficult to develop along the river because developers will have to comply with the Clean Water Act.

The Clean Water Act is the primary federal law dealing with water pollution. Congress enacted the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” One of the ways the Clean Water Act achieves that goal is by prohibiting the discharge of any pollutants, including dredge or fill material, into “navigable waters” unless in compliance with the act. Because the Clean Water Act prohibits the dredging or filling of any navigable waterway, developers must comply with the Clean Water Act. This typically requires that they obtain a permit. The permit process is often lengthy and difficult, requiring submission of detailed information that may require the assistance of experts. Unless the development project will have only minimal impacts and can qualify for a “nationwide” permit, the process can be a long one, requiring comment by other governmental agencies as well as the public. Once issued, the permit will also contain conditions that may be expensive and difficult to implement.

EPA’s recent designation also signifies how other urban-waterways may be viewed in the future. EPA Administrator Lisa P. Jackson remarked that EPA wants “the L.A. River to demonstrate how urban waterways across the country can serve as assets in building stronger neighborhoods, attracting new businesses and creating new jobs.” EPA’s designation may be a first step for what’s to come both for the protection of our urban waterways and the additional compliance and regulatory issues that protection may bring for developers.