State fears loss of surface-water rights

Gov. Janet Napolitano and the Arizona Department of Environmental Quality say they’re losing the ability to regulate surface water in the state.

At a May 19 ADEQ hearing in Tucson on declaring Davidson Canyon as “Outstanding Arizona Water” — a designation that strengthens water quality protection — a controversial Supreme Court Decision raised questions of a larger significance to Arizona and other Western states.

The hearing also provided an opportunity for those in attendance to comment on he state’s proposed revisions to water quality regulation, which was of little concern to most were present to overwhelmingly support protecting the canyon by giving it a higher surface water quality standard than other surface water bodies.

For three years, Pima County’s administration and the Pima Association of Governments have pushed for this special protection of Davidson Canyon, emphasizing the importance of protecting it from the proposed Rosemont mine as well as others.

Therefore, it came as a surprise to environmentalists in attendance when Pima County Deputy Attorney Harlan Agnew raised the question of the ability of ADEQ to regulate Davidson Canyon as an “ephemeral,” or non-continuous body of water.

Agnew asked the state to clarify how it could rule on Davidson Canyon and any water quality standard setting under the Clean Water Act until they were “consistent with the Rapanos decision,” according to oral testimony he submitted to ADEQ.

Agnew suggested that in order for the state to secure the designation of Davidson Canyon, they first had to show a “significant nexus” between the canyon and the distant Colorado River. A Phoenix-based group representing industry and municipal dischargers, the Water Quality Coalition, expressed similar sentiments more emphatically.

In June 2006, the United States Supreme Court voted 4-4-1 in a ruling on whether a Michigan wetlands owned and damaged by John Rapanos had a connection to a “navigable body of water of the United States” under the Clean Water Act. Three very different interpretations of the act were laid out — four justices wanted it to govern only water flowing freely, four others wanted to maintain the existing broad authority of the EPA and the Army Corps of Engineers established by a 1975 Circuit Court ruling.

The tie-breaker was Justice Anthony Kennedy, who decided that there should be a “significant nexus” to a “navigable body of water of the United States” — the language governing the act. Kennedy’s interpretation has provided the confusing basis for subsequent state and federal actions.

The decision overruled a 1975 9th Circuit Court decision regarding a now-defunct Phelps Dodge Smelter in Douglas, Ariz. that the Clean Water Act “extends to all pollutants which are discharged into any waterway, including normally dry arroyos, which could reasonably end up in any body of water in which there is some public interest, including underground waters.” This previous ruling, along with subsequent rulings, broadened the authority of the Clean Water Act until 2001, when another Supreme Court ruling, called the Solid Waste Agency of Northern Cook County decision, began to weaken it.

An coalition of the Bush administration, states including Arizona and New Mexico, and various environmental groups lost a plea to the Supreme Court to maintain the status quo of the Clean Water Act in the Rapanos case.

Subsequently, nearly two years of chaos has ensued in every court and state regulatory agency throughout the country as to how the Clean Water Act is now applied in all its sections. The biggest concerns have been over individual pollution discharge permits, called NPDES, which the EPA oversees, although some states have developed their own programs, including permits for “dredge or fill projects” that disrupt the flow of water. The latter of which are regulated by the corps.

As a result of the confusion in the courts and states, the EPA and Army Corps of Engineers created a joint guidance document interpreting how to apply the Rapanos decision, though it is generally seen as unusable and legally unenforceable.

What is now apparent is that the Rapanos decision has created a potential disaster in parts of the West where dry washes are the norm, not an anomaly, and where ships would have problems navigating with or without pollution.

“The recent court decisions have overturned what was presumed to be a given,” said EPA attorney Jessica Kao. “We are, in many respects, in pre-1975 legal territory.”

EPA Region 9 colleague David Smith, chief of the Wetlands Division, said, “Rapanos’ impacts on the Clean Water Act are a big threat and we’re real concerned.”

“There’s only one Clean Water Act and a state is either going to have jurisdictional issues related to it everywhere in the act or not,” Smith said. “The most direct impact of Rapanos is on NPDES permits and the corps-related issues, but there will be others, and states like Arizona, Nevada and New Mexico that choose to not regulate water more stringently than the federal government are in trouble.”

In Arizona, this may mean that it has a hard time protecting the surface water quality for up to 60 percent or more of its real estate, Smith said.

“We really don’t know what will happen,” Smith said. “There are many political voices, such as the mining industry, who have no desire to see Rapanos reversed. Before Rapanos and the 2001 SWANCC decision, we had a pretty clear sense that the Clean Water Act applied to all water bodies. Now we have a patchwork.”

In September 2007, Napolitano wrote to U.S. Rep. James Oberstar, D-Minn., to offer her support of the House and Senate Clean Water Restoration Acts—companion Clear Water Act reform bills meant to clarify congressional intent to return authority to the EPA and the Army Corps of Engineers to protect all water quality and overturn Rapanos.

“We rely on the federal Clear Water Act to protect Arizona’s surface water quality… therefore, I support your effort to maintain the clean water protection we have enjoyed for more than three decades and denounce any effort to the contrary,” Napolitano wrote.

Arizona stands to lose jurisdiction over 96 percent of its waterways that don’t flow year round if Congress does not step in, ADEQ Water Quality Division Director Joan Card told Congress.

Speaking at House and Senate hearings in April, Card described the issuance of permits to limit sewage, hard rock and uranium mining and other industrial discharges to waterways that ultimately feed into the Gila drainage, Little Colorado, and hence into the Colorado River. “Many…facilities currently hold Clean Water Act point source permits for discharges of wastewater that are protective of aquatic life, agricultural irrigation, livestock watering, and body contact…without (CWA) protection, (ADEQ) will be unable to require permits that are protective of these uses,” Card said. “Arizona law prohibits (ADEQ) from being more stringent than the federal Clean Water Act. We will be unable to assure…that these discharges of wastewater in the desert are not harmful to the environment.”

Pima County Deputy Attorney Agnew said a decision must be made in order to protect Davidson Canyon, but the state must also comply with the Rapanos ruling.

“Davidson Canyon is extremely important to the county. We want it protected; It’s the water for Cienega Creek,” Agnew said. “ADEQ needs to take the steps necessary to determine what authority is needed to do that, and they can’t ignore post-Rapanos jurisdiction questions in their notice of rulemaking on any water quality standards. Somebody has to make a decision here. They have the authority under state statutes to regulate water quality of non-navigable waters if they decide that they can’t make the case for navigable waters,” he said.

Arizona may want to look to other states for examples of other options, said David Smith.

“The Clean Water Act was meant to give states a political buffer in protecting water quality. They could simply adopt the act or do something independently, and perhaps more stringent. In California and Nevada, we already have pollution discharge permits for dry arroyos that were declared null and void because of Rapanos,” he said. “Nevada does not have a law stronger than the Clean Water Act. California allows local water authorities to resolve the problem. That is, if they have the political will to do so.“

Attorney Melinda Kassen of the Denver office of nonprofit environmental group Trout Unlimited pointed to successful local efforts in Boulder among local water regulatory agencies and within county planning and zoning departments to fill in the gap left by Rapanos, while conceding that “nobody knows what will happen as a result of it.”

Joan Card said that the nomination of Davidson Canyon and other state water quality rules could proceed under a section of the Clean Water Act that Rapanos should not impact. Agnew thinks that’s worth exploring, however other officials familiar with the political workings of such actions warn them to be prepared.

“Arizona may find that using state or local regulations and laws to regulate pollution discharges and other Clean Water Act issues is politically complex,” said Smith.

Dick Kamp is environmental liaison for Wick Communications Co.