Non-navigable River Blues

Muddied water-protection standards leave Western streams without oversight

 

Listen to Heather Wylie tell us about her experiences going head to head with the feds.

Heather Wylie found herself out of a job in December. And it really had nothing to do with the economic crisis or her workplace performance. The 29-year-old biologist, who had worked for the U.S. Army Corps of Engineers in Southern California for five years, left because of a little kayak trip. It wasn't exactly a whitewater wilderness adventure: Wylie and her companions were more likely to encounter discarded car parts or grocery carts than frothing rapids, and much of the scenery was covered by elaborate graffiti. Parts of the stream more closely resembled a giant concrete trough than a burbling brook.

Wylie, however, was not out there for the scenery. She'd joined a dozen boaters on a 52-mile, three-day trip on the Los Angeles River in July 2008 to prove a point: that her own employer's declaration that the L.A. River was non-navigable was simply wrong. If the boaters could make the trip, that proved that one could, in fact, navigate the river. And that, in turn, increased the likelihood that the river's dozens of major tributaries (many of which are dry, sandy washes most of the year) fell under the jurisdiction and protection of the Army Corps of Engineers.

When Wylie's bosses found out what she had done (Wylie says they scoured blogs and Web sites in search of incriminating photos), they were not happy. First, they threatened her with suspension. Then, in December, after Public Employees for Environmental Responsibility took up her case because they felt she was being retaliated against for her opposition to Corps policy, she resigned under a settlement that both sides agreed to keep secret.

In the meantime, Wylie's troubles drew activist, media and even congressional attention to the murky consequences of a 2006 Supreme Court ruling and its subsequent interpretation and enforcement. The Rapanos v. United States case was supposed to clarify the scope of the Clean Water Act. Property rights activists initially hailed the court's split ruling as a victory.

"Our constitutional way of life got a boost last year from the U.S. Supreme Court when the court rejected the idea that federal officials have unlimited control over every pond, puddle and ditch in our country," said the Pacific Legal Foundation, a property-rights organization.

Today, however, almost no one is happy with the ruling. Environmental-ists say that Rapanos leaves thousands of once-protected streams, arroyos and wetlands without federal oversight. About 350 miles of streams were removed from federal control in a single six-month period, for instance, and enforcement of many anti-pollution cases was stopped in its tracks. Developers, meanwhile, have found the new guidelines to be even more cumbersome and time-consuming than the old ones were.

In other words, it's a mess. Though Congress is poised to intervene in an attempt to clean things up, that will likely only provoke a bigger battle over the Clean Water Act and its enforcement, especially when it comes to the ephemeral waters of the arid West.

Error on page 2
Steve Snyder
Steve Snyder
Feb 02, 2009 06:04 PM
Tony Davis says:

"After a summer thunderstorm, however, the Santa Cruz roars through Tucson in a torrent, putting other rivers to shame. It's been known to swell to the size of the Colorado River through the Grand Canyon, even reaching 50,000 cubic feet of water per second on one occasion, which rivals the Missouri River as it meets up with the Mississippi."

Last time I checked, the Santa Cruz didn't flow into the Colorado.
Oops, I misread that, I think
Steve Snyder
Steve Snyder
Feb 02, 2009 06:06 PM
I think Davis was comparing the Santa Cruz to the Colorado; I'm sorry, ignore my previous comment.
Santa Cruz to Colorado
Tess
Tess
Feb 04, 2009 10:20 AM
Nope--they do mean flowing into the Colorado. If you follow it, the river does follow a 300 some mile journey into the Gila and ultimately the Colorado River...

Tess
Santa Cruz and Colorado
Jonathan Thompson
Jonathan Thompson
Feb 04, 2009 10:41 AM
Actually, that was put in there purely for comparison's sake: The point being that the Colorado rages through the Grand Canyon, and sometimes, astonishingly, the Santa Cruz gets that big, too. Of course, as Tess points out, water in the Santa Cruz does eventually reach the Colorado River.
The solution is a regional definition of "navigable"
Greg Reis
Greg Reis
Mar 01, 2009 03:08 PM
The physical test is the most accessible (and fun) determination. But if that is thrown out, then navigability should be defined on a state or regional level. What is navigable in Arizona perhaps shouldn't be defined as navigable in New England. Peak flows are a much better tool to use than the low flow--the peak flow is when the most sediment and pollution moves downstream and when geomorphologically significant events occur, regardless of whether a stream is wet or dry the rest of the year.

The danger in local control is that as long as there is money to be made, local officials can't always be trusted to enforce environmental laws (much like the southern states refused to enforce civil rights laws). Federal intervention is necessary, but regional experts (at universities, perhaps) should be consulted so that our diverse rivers and streams aren't squeezed into a one-size-fits-all definition of navigability.