Several months ago, the Army Corps proposed to redesignate the Los Angeles River as nonnavigable for purposes of the Rivers and Harbors Act and the Clean Water Act. To prove the Corps wrong, Heather Wylie, a Corps employee, joined others in a kayaking trip down the LA River to establish that it remains navigable-in-fact. Ms. Wylie has written this op-ed in the LA Times, not only defending her actions, but arguing that the Corps' navigability reassessment will mean significantly less protection for the LA River.
Whatever the merit of Ms. Wylie's contentions regarding the Corps' treatment of her following her kayaking expose, her analysis of the effects of the Corps' reassessment is inaccurate.
First, Rapanos says nothing about navigability---the test for whether a waterbody qualifies as a traditional navigable waterway (for Commerce Clause purposes, and thus for Clean Water Act purposes) has remained essentially unchanged for more than half a century. See United States Appalachian Elec. Power Co., 311 U.S. 377 (1940). What Rapanos changed was the test for determining whether a nonnavigable waterbody is sufficiently connected to a navigable waterway to allow for regulation of the former.
Second, whether or not part of a waterbody is considered navigable has no direct effect on whether the nonnavigable portions of the waterbody are covered under the CWA. Under the Rapanos Scalia test, if there is continuous flow and if the waterbody can be classified as a stream or creek (as opposed to a manmade drainage ditch), then it's likely jurisdictional. Under the Rapanos Kennedy test, if the waterbody substantially affects the physical, chemical, and biological integrity of the navigable waterbody, then it's jurisdictional. Neither Rapanos test turns on navigability per se.
Thus, Ms. Wylie's objections, and those of her peers, seem to be founded upon a plain misunderstanding of the CWA and Rapanos.
[For a contrary view on the relationship between navigability determinations and the Kennedy significant nexus test, see William W. Sapp et al., The Float a Boat Test: How to Use It to Advantage in This Post-Rapanos World, 38 Envtl. L. Rep. News & Anal. 10439 (Jul. 2008).]