An Army Corps of Engineers biologist who took part in a kayak trip to show the waterway is navigable may face dismissal for her actions.
Heather Wylie, Los Angeles Times October 2008
A kayak trip I took this summer may cost me my job.
I am a civilian biologist working for the Army Corps of Engineers. On my personal time, I joined a trip down the Los Angeles River to protest actions by my own agency to undermine the Clean Water Act.
My superiors scoured the Internet for proof and found two photos of me on a blog. Claiming that my “participation undermined [its] authority,” the corps has proposed suspending me for 30 days, a punishment one step below termination. More than two months after advocating this penalty, it has yet to make a decision.
In July, a dozen kayakers took a three-day journey down the 52-mile L.A. River; I joined them for 20 miles. The purpose of our regatta was to show that the entire river is “navigable-in-fact” — a classification that is crucial to preventing the rollback of Clean Water Act protections throughout the watershed — and to highlight similar threats facing waterways across the nation.
More than 30 years after its enactment, the Clean Water Act is now in legal turmoil. A 2006 U.S. Supreme Court decision, Rapanos vs. United States, first muddied the waters. The court held that to continue to regulate pollution under the Clean Water Act, the government has to prove there is a “significant nexus” between the wetlands in question and “navigable-in-fact” waters.
The term “navigable-in-fact” comes from 140 years’ worth of court rulings. Waterways that have or can generate interstate or foreign commerce through boating (including seasonal, hazardous or solely recreational use) are navigable-in-fact and thus subject to the provisions of the Clean Water Act. So our kayak trip was meant to underscore that the L.A. River — and all the streams that feed into it — deserve protection under that law.
Last year, in response to the court ruling, the corps and the U.S. Environmental Protection Agency put together a document spelling out new, more restrictive methods for analyzing which waters will continue to be subject to the law. With a big assist from the Bush administration, developers and industry successfully lobbied the agencies to use the new guidebook as an opportunity to push the majority of our nation’s streams and wetlands out of reach of the Clean Water Act.
In the view of many, the restrictive standards cripple the Clean Water Act. In a memo released by Rep. Henry Waxman (D-Beverly Hills), the top EPA enforcement official complained that the change has blocked the majority of Clean Water Act prosecutions.
Fortunately, the corps’ shenanigans and the attention our protest and that of others drew to the issue triggered an unusual countermove: The EPA permanently stripped the corps of any further responsibility for determining the status of the L.A. River and Arizona’s Santa Cruz River.
Still, scores of other watersheds across the nation remain in jeopardy. A navigability analysis of the Gila River in Arizona has just been completed, designating only 6.9 miles as navigable-in-fact. This has enormous implications; the Gila River flows hundreds of miles across the width of Arizona, and its watershed covers vast areas of the state. The analysis focuses on a small section of the Gila near the site of a proposed development where lobbyists are pushing for relaxation of environmental protections. In response, the corps has proposed removing Clean Water Act coverage from several creeks at the site. If the EPA doesn’t overturn it by Tuesday, these rollbacks will become final and set a detrimental precedent.
Legislation to restore the Clean Water Act and protect our rivers from being polluted, or our wetlands from being drained for development, is still pending in Congress. It needs to be a top priority.
I picked up a paddle to make a point about protecting the integrity of our waters, including the much-abused L.A. River, and to protest the leadership of my own agency. The Army Corps of Engineers, all the way down to the Los Angeles District, has chosen to subvert the Clean Water Act, which the agency — like myself — has sworn to uphold. To me, protecting our waters, our greatest public-trust resource, is not just our job; it is our patriotic duty.
As a federal employee, I did not forfeit my 1st Amendment rights to speak out or to petition my government to redress wrongs — on my own time. To my surprise, my demonstration about the Clean Water Act has turned into a fight about the extent to which public servants will be allowed to serve the public, our true employers, while off-duty. I stand by my actions, and I have not put my paddle away.
Heather Wylie is a biologist with the regulatory division of the L.A. District of the U.S. Army Corps of Engineers. The opinions expressed are her own and do not reflect the official views of the corps.