Navigable Shavigable: Wait, there is a river in Los Angeles? - October 10, 2008
Posted for Emma Marris
A US Army Corps of Engineers scientist has gotten into deep trouble with her employer over some shallow water.
Biologist Heather Wylie was cited by the Corps for “off-duty kayaking” and “circulating a news article via e-mail documenting Clean Water Act enforcement problems” (according to the Public Employees for Environmental Responsibility). The citation came down in early August, but the proposed 30-day suspension hasn't yet happened, and PEER is filing a whistleblower complaint to try to stop it.
Why should “off-duty kayaking” be such a contentious issue? The purpose of the Wylie’s July trip down 51-miles of the Los Angeles River was to demonstrate to the Corps that the river is a navigable body of water.
If it is, then it should be covered by US's Clean Water Act...
The act protects surface water from pollution. But what kind of water?
If the act protected all water, it would apply to puddles, flooded gutters, and hot baths. And I am not sure all my various bubble-bath potions would be kosher. Not to worry: the act uses restricts itself to 'navigable waters'.
The act defines this as "the waters of the United States, including the territorial seas" (see 33 U.S.C. 1362). And "the waters of the United States" is defined in more detail by the Army of Corps of Engineers (in 33 CFR Part 328). The detailed defintion includes all waters ever or potentially of use to "interstate or foreign commerce" and waters "which are or could be used by interstate or foreign travelers for recreational or other purposes".
Sounds bureaucratic, and it is, but whether a bit of water is defined as navigable or not may have a lot of influence on how protected it is.
So this little kayaking trip was making a big point. The trip was organized by George Wolfe, Editor of the satirical LaLa Times, and covered with photos here and here and here by L.A. blog LAist.
As LAist notes:
The Army Corps of Engineers caused a stir in the community last month when they declared that the Los Angeles River was not, in fact, a river because it was not navigable, save for two spots.Many people including politicians, community members, environmentalists and George Wolfe, Editor of the LaLa Times and the leader of today's expedition, said this is detrimental to the city.
Meanwhile, someone at the EPA apparently agrees with the paddle-toting activists, because in a 17 August letter, the EPA wrested control of determining whether the river was navigable away from the Corps.
EPA spokesperson Enesta Jones says, "We are hoping to make a decision in the next couple of months." Stay tuned.
More at Friends of the Los Angeles River and The Los Angeles River: Past, Present, and Possibilities.
Photo by Tom Andrews
Comments
Since Ms. Whylie has now demonstrated that the Los Angeles River is a navigable waterway, it should be protected by the Clean Water Act, but also by the 1972 Federal Water Pollution Control Act and the 1899 Rivers and Harbors Act (aka - 1899 Refuse Act).
Posted by: William E. Marks | October 12, 2008 12:31 PM
The clean water acts already protects non-navigable tributaries (like ephemeral streams and drainage ditches). Temporary flow conditions do not alter a determination of a streams navigability (floods and draughts are not considered the "ordinary conditions). The ACOE got this one right.. This "river" is non-navigable but protected under the CWA under the "significant nexus" application.
Posted by: mike | December 1, 2008 01:16 AM
Check out this whistleblower's story on youtube: http://www.youtube.com/watch?v=579AOuQXCTI
Posted by: Thea Mercouffer | December 11, 2008 10:58 PM