Non-navigable River Blues

by Tony Davis

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.

Folks from the Pacific Northwest and back East have been known to scoff at what passes for a "river" in the Southwest. The Los Angeles River is better suited to high-speed Hollywood car chases (Italian Job, Terminator 2, To Live and Die in L.A.) than traditional river activities. New Mexico's Santa Fe River is often a stagnant trickle, and the Santa Cruz River in southern Arizona is just a parched and sandy, concrete-confined wash through Tucson during most of the year. These streams are in a tattered state because humans have locked them into flood-control structures, sucked them dry with groundwater pumping, and wrecked their banks with overgrazing and development. But even in pre-industrial times, they would have been considered only minor streams, not rivers, in most of the country.

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.

About 95 percent of Arizona's rivers and streams -- or virtually everything in the state except the Colorado, Gila and Salt Rivers -- are ephemeral or intermittent, running only part of the year. The percentage is nearly that high in Nevada, New Mexico and Southern California, compared to 59 percent of streams in the nation as a whole.

But these non-perennial streams offer the same benefits to land, wildlife and plant life as year-round rivers, according to an Environmental Protection Agency study published last fall.

When functioning properly, even sandy arroyos can slow high-water flows enough to keep streambanks from washing out. Ephemeral and intermittent streams in the desert can replenish the aquifers that serve people. And they generate the desert's richest collections of trees and shrubs, offering food, cover, nesting and movement corridors for wildlife.

Though these streams are often bone-dry, they have long been considered "waters of the United States," protected by the federal government.  If someone wanted to fill in an arroyo, the Corps would visit the site and determine its ordinary high-water mark. Land within that area was then deemed "jurisdictional," meaning that anyone wanting to build there needed a permit under Section 404 of the Clean Water Act. Anyone wishing to discharge pollutants needed a permit from the Environmental Protection Agency, under Section 402 of the act.

Today, the Army Corps issues about 100,000 404 permits annually, giving each of the agency's staff of about 1,200 regulators dozens of cases each year.

Permits are seldom denied, but most are issued with conditions attached. If a developer or road builder clears trees along a wash, for example, he might have to plant three trees for every one destroyed, or pay a conservation group to restore other areas, or develop in such a way as to protect the most significant portion of a wash.

Getting the permits can be exhausting and expensive. A 2002 peer-reviewed study found that the typical 404 permit costs $271,596 and takes 788 days to obtain. (The Corps itself says that a typical permit costs about $24,000 and takes 187 days.)

In any event, says Jonathan Adler, a law professor at Case Western Reserve University who is generally sympathetic to property-rights issues, the hassles associated with Section 404 "did more than any other single federal program to stoke the fires of property-rights activism."

Two decades ago, a small-time Michigan shopping-center developer named John Rapanos raised the property-rights banner on high: He filled in more than 50 acres of what his own consultant had told him were wetlands without getting a federal permit first. He was taken to court and found guilty of civil violations of the Clean Water Act; a circuit court later upheld the district court's ruling, which brought with it millions of dollars in fines.

Rapanos appealed to the U.S. Supreme Court, and in 2006, five justices voted to vacate the civil judgment against the developer, and return the case to the lower courts. But the justices split 4-4-1 on the bigger question of what standards should be used for protecting rivers and streams.

Justice Antonin Scalia and three others agreed that washes had to be "relatively permanent" to warrant federal protection. Ephemeral and intermittent streams were out of the running. "By applying the term 'waters of the United States' " -- the Clean Water Act's benchmark for federal control of a wash -- to ephemeral streams, wet meadows, and "dry arroyos in the middle of the desert … the Corps has stretched the term … beyond parody," Scalia wrote. Justice John Paul Stevens and three others supported the existing system.

In a separate opinion that has become the ruling's most commonly cited passage, Justice Anthony Kennedy offered a different guidepost: that a wetland deserves protection if it connects to a tributary that has a "significant nexus" with a navigable waterway. But how do you determine that? "Case by case," replied Kennedy.

That left the Corps and the Environmental Protection Agency with the arduous task of figuring out exactly what a "significant nexus" is. Initially, the agencies showed sympathy for non-perennial streams: An early draft of the guidelines sent to the White House Council on Environmental Quality included a provision that would consider the combined effects of similar tributaries on a navigable stream when deciding whether a stream passes the nexus test. But Virginia Albrecht, an attorney for developers and other industries with a stake in the decision, objected. In a letter to Gregory Schildwachter, the Council's associate director, she argued that the provision was inconsistent with the "case by case" direction. 

Under pressure from the White House, the agencies ultimately withdrew the combined-effect provision, and instead included in its June 2007 guidelines a highly technical seven-page process for determining whether something is a "significant nexus." Developers winced at the prospect of going through the process, which seemed to promise more, not less, red tape. And enviros worried that desert streams would be left high and dry. Lance Wood, assistant counsel for the Corps in Washington, D.C., echoed that concern in an e-mail to Wylie, in which he wrote that the guidelines would make "it hard to assert jurisdiction over any particular ephemeral or not relatively permanent intermittent stream."

But Benjamin Grumbles, EPA's assistant administrator for water, said that the agency simply sought to strike a balance between environmentalists' desire to interpret Kennedy's "significant nexus" test as broadly as possible, and the government's determination to defend its decisions in court.

The waters only got murkier as a result.

Heather Wylie was a recent college graduate with an honors degree in environmental chemistry in 2003 when she met a biologist with the Army Corps of Engineers at an Earth Expo conference in Ventura, Calif. Shortly thereafter, she took a job as a project manager for the Corps in Ventura. "I had a good understanding of science, but I didn't understand politics," Wylie remembers. "And I thought, I'd love to work with the Clean Water Act."

She got her chance, not only to work with the act, but to mire herself in politics. In early 2007, a Ventura County developer wanted to fill in a half-acre vernal pool for a parking lot. The pools, once widespread in California but now down to 3 percent of their original number, capture water and play host to endangered fairy shrimp.

Wylie wanted the project delayed and the pool left unharmed when the developer graded the 10-acre site. Although an EPA official agreed with her in writing, her boss, Aaron Allen, disagreed and took her off the case. Later, Wylie tried to show that several polluted creeks were hurting the Ventura County lake into which they fed. Again, the same supervisor butted heads with her, although eventually he came around, she says. (Corps officials have declined to discuss Wylie's case on the grounds that they don't discuss personnel matters.)

But it was the Rapanos guidelines that got Wylie really riled. In July 2008, she wrote an e-mail to about a dozen co-workers, citing an internal EPA report critical of the guidelines. That report had been obtained and leaked by the environmental group Greenpeace.

"(The report's author) says what I have been saying for a year now, that the guidance is not consistent with the Rapanos ruling, science or the intent of the CWA, and is putting our waters at risk," Wylie wrote. "Maybe now we will be rescued from having to implement an illegal piece of 'guidance' soon."

The problem, according to Wylie and environmentalists, is that the guidelines made it much harder for federal enforcement agencies to establish jurisdiction over ephemeral streams, arroyos and the like. Before the ruling, it was presumed that the federal government had jurisdiction over any given stream. Afterwards, jurisdiction had to be proven, first, by determining whether the waters were navigable. Then, the agency had to show how a particular reach of a particular tributary affected the navigable water.

"That's ridiculous," Wylie says. "To show how each little creek affects it is just an act of futility. How do you show how each little creek by little creek is having an effect on the Gila River, 20 miles away?"

The city of Buckeye, Ariz., lies in creosote flats far to the west of downtown Phoenix, but it's well on the way to being gobbled up by the megalopolis. Today, Buckeye has 57,000 residents; demographers believe it could have as many as 1.7 million in 50 years, thanks to a handful of new developments such as Trillium, with its projected 8,700 homes. Trillium's 3,242 acres are drained by a series of small, fingerlike washes that come together and ultimately feed into a section of the Gila River deemed navigable by the Corps.

Before Rapanos, the developer would have had to go through the federal permitting process before disturbing any of the washes. Now, the Corps has claimed jurisdiction over only the largest of the streams. That leaves some large washes unprotected, says Dave Smith, a regulator with EPA's Region 9 -- and those washes can carry a lot of water during storms. Had the guidelines allowed agencies to consider the combined effect of several washes, the decision might have been different. "I think I would call this a disagreement among agencies," Smith says. "What it illustrates is that we are all struggling to apply a difficult legal standard."

Nationwide, problems have rippled across the agency's attempts to enforce the Clean Water Act. Last year, internal EPA watchdog Granta Nakayama found that Rapanos and its fallout had hurt more than 500 pollution-enforcement cases, from July 2006 to December 2007. About half involved oil spills. More than 300 cases were dropped altogether, and defendants in 61 cases used Rapanos to weaken the government's arguments.

The guidelines hampered enforcement by narrowing the definition of a tributary to cover only a single segment of an individual stream -- what's called a "relevant reach," Nakayama wrote in an agency memo. "The concept of relevant reach ignores longstanding scientific ecosystem and watershed protection principles critical to meeting the goals of the Clean Water Act," the memo said.

In January 2008, an official in the EPA's Denver office e-mailed the agency's Washington headquarters, warning that "we have literally hundreds of (oil spill) cases in our 'no further action' file due to the Rapanos decision." In February, an EPA official in San Francisco sent out an e-mail -- titled "R.I.P." -- announcing that his office was giving up on a case in which the Justice Department sought civil penalties for a series of Clean Water Act violations.

"It is time to pull the plug in keeping this case on life support," the e-mail said. "With the march of time largely attributable to the impact on the case by Señor Rapanos and his merry band of Supreme Court justices, we had lost many violations due to the statute of limitations."

A few weeks after the 2006 Supreme Court ruling, a district court judge in Texas tossed out a federal criminal charge against Chevron Pipe Line Co., which had spilled 126,000 gallons of oil into an intermittent stream in West Texas. Since that stream is separated from the nearest navigable waterway by 100 miles of intermittent streams, the judge ruled that the tributary didn't pass the significant nexus test. He accepted Chevron's argument that "it seems self-evident that the Clean Water Act does not apply in the absence of water." In Alabama, a conviction and $5 million fine against a manufacturer for polluting a stream was thrown out on the grounds, once again, that there was no "significant nexus."

In New Mexico, state officials said that the EPA had halted inspections of potential polluters in 20 percent of the state's land area because of Rapanos. These areas, known as closed basins, have streams that do not drain to outside areas, much less into navigable waters. The largest such area is the Tularosa Basin in southern New Mexico, home to the Tularosa River, which provides drinking water for several communities.

The problem is that if the EPA doesn't inspect stormwater discharges caused by construction in the growing area, a variety of contaminants could be carried into the river, says Marcy Leavitt, director of water and waste management for the New Mexico Environment Department.

EPA spokeswoman Tressa Tillman would not comment on the cases, but she acknowledged "that since the Rapanos decision, determinations of jurisdiction have become more complex and resource-intensive."

In March 2008, the Army Corps of Engineers declared the L.A. River non-navigable. While that did not remove the river from Clean Water Act jurisdiction, it made it much more difficult to prove that its tributaries, which drain 871 square miles, have a "significant nexus" with a navigable stream and therefore fall under federal control.

In response, Wylie stepped up her activism a notch. In the spring, she leaked a copy of the non-navigable decision to U.S. Rep. Henry Waxman, D-Calif. Then, in July, she joined the expedition down the L.A. River in order to prove that, at least by kayak, the river is indeed navigable for its entire reach.

In early August, Wylie's boss, Aaron Allen, wrote her a letter, proposing to suspend her for 30 days without pay for sending "an unauthorized and inappropriate e-mail message," and for participating in an "unsafe, unauthorized boating expedition on the Los Angeles River that violated a Corps of Engineers policy that prohibits boating in the area."

Nevertheless, Wylie and other activists had already been heard. In August, Waxman launched a congressional investigation into the implementation of Rapanos by the Corps and the EPA. The same month, the EPA nudged its way into the L.A. River debate, announcing it, not the Corps, would make the final decision on navigability.

Meanwhile, the agencies' handling of Rapanos has also come under attack from the other side.

At a 2007 Scottsdale workshop on the ruling, sponsored by business groups, it was clear that developers and mining companies found the guidelines difficult and confusing. Corps and EPA officials acknowledged that they had no "cookbook" laying out simple rules for defining a "significant nexus."

Phoenix-area attorney Rob Anderson, who represents many regulated businesses, responded: "We don't know what a significant nexus is. We don't know what a navigable water is. We don't know what a relatively permanent water is. … I think that the downturn in the housing market is the only reason we haven't had a complete train wreck on this."

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Meanwhile, the backlog of Rapanos cases grew nationwide thanks to difficulties in deciding jurisdiction over streams. The U.S. Chamber of Commerce pegged the backlog at 15,000 to 17,000 permits in 2007. Even the environmental group Trout Unlimited was affected -- a restoration project in Idaho was delayed a year while jurisdictional issues were sorted out, says Melinda Kassen, director of the group's Western water project.

In response, last June the Corps gave developers and other project builders the right to "opt in" to the agency's permitting system, by agreeing to go with the pre-Rapanos rules. In the vast majority of cases, developers now are choosing to opt in.

"One of the interesting things that is happening is this -- you can go under the old rules and people are just saying, 'Please, let me go under the old rules.' … We hated the old rules, but now we would just love to go under the old rules," Anderson said at the Scottsdale workshop.

But in an interview late last year, Anderson said that the biggest problem with the Clean Water Act regulations is not the Rapanos case or the guidelines; it's that federal agencies have yet to draw up a formal rule that clearly spells out the limits of federal control over rivers and streams. He said, "I believe it is inevitable that the agencies will run into a lawsuit where the courts will say, 'You guys are wrong.' "

In early December of 2008, the EPA and the Army Corps issued revised guidelines on implementing Rapanos. Largely unchanged from the originals, the guidelines do make it harder to prove a river navigable. Now, the federal government must produce written plans for future commercial use of a river, if the river in question has never known such use.

Wylie left her job under a secret settlement that same month, and the congressional investigation that she helped spark wound down, concluding with a condemnation of what the investigators saw as shoddy enforcement of the Clean Water Act.

That investigation also revealed -- with Arizona's Santa Cruz River as exhibit A -- how Rapanos inadvertently made rivers and streams vulnerable to political pressure. Back in May, the Corps had declared 54 effluent-filled miles of the Santa Cruz navigable. That decision drew on extensive scientific and engineering data from federal agencies, academic studies and historians.

But the decision didn't hold. Virginia Albrecht, a lobbyist for the National Association of Homebuilders (and the same attorney who had earlier pressured the feds over the Rapanos guidelines), and other development interests privately protested it. Shortly thereafter, Assistant Secretary of the Army John P. Woodley Jr. suspended the ruling, according to internal Corps e-mails released by investigators for the House Transportation and Oversight and Investigations committees. Other e-mails showed that Woodley acted over the objections of much of the agency's technical staff.

A lot is at stake in this decision: A huge copper mine is planned in the Santa Cruz drainage, a quarry is on the verge of being developed, 13 Pima County road projects are planned along various Santa Cruz tributaries, and the basin holds some of the fastest-growing communities in the West. And since Arizona has a law that prevents its own water-quality rules from being more stringent than federal ones, Woodley's decision to suspend the Santa Cruz navigability ruling could have put dozens of desert streams at risk.

Just as it had done with the L.A. River, however, the EPA waded into the contentious Santa Cruz waters. And in December, the agency declared the Santa Cruz navigable once again. The L.A. River case is still pending.

This year, the battle over river regulation goes to Congress, which will consider a bill aimed at restoring federal river-protection authority. The Clean Water Restoration Act would remove navigability as a benchmark for deciding if rivers and streams fall under federal control, and replace it with a greatly expanded standard that would include intermittent streams. Environmentalists and developers will duke it out over whether this bill would simply restore the feds' pre-Rapanos authority, or expand it considerably beyond that.

If it does pass, the act may be challenged in court by property-rights groups, who would likely argue that the Constitution's interstate commerce clause doesn't give the government that much power over river management, says Pat Parenteau, a Vermont Law School professor who studies the Clean Water Act. 

And Heather Wylie could be involved in that court case. She's decided to go to law school so that she can fight for the environment in the courtroom. Though currently out of a job, she's happy with the attention her protests drew to the obscure Rapanos case and its consequences. "I didn't want to sit around and rot like my colleagues were doing," she says. "I wanted to get out and make the world a better place."

What about John Rapanos, the guy who started the whole ball rolling? In December, more than 20 years after he ruined a wetland, Rapanos agreed to pay a $150,000 civil penalty; he will also spend an estimated $750,000 to re-create the wetlands he wrecked. He has never admitted doing anything legally wrong. But he sure sent the Clean Water Act into a regulatory abyss.

This article was made possible with support from the Kenney Brothers Foundation.

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