Santa Cruz River studies may impact mining, development

A federal agency has ruled the Santa Cruz River is “navigable,” a decision that could strengthen regulation of development and pollution discharges into the waterway.

Rosemont Mine opponents believe the determination could pose a major obstacle to the opening of the mine.

Pima County and developers may see more rapid decision-making on some projects.

The U.S. Army Corps of Engineers’ May 23 determination was required by a controversial 2006 Supreme Court decision in the Rapanos case, which reinterpreted the 1972 Clean Water Act.

The Rapanos decision potentially excluded from the Clean Water Act waterways that are either non-navigable or don’t have a “significant nexus” to a navigable waterway.

This has created legal chaos for some arid Western states, including Arizona. Many prohibit surface water pollution with regulations more stringent than the Clean Water Act.

The corps’ determination means the river, all tributaries and all drainages to tributaries that enter these stretches of the river are far more likely to be regulated for pollution discharges and stream blockage impacts under the Clean Water Act.

The two stretches of the river that the corps analyzed run north from the Tubac Gage Station downstream to the Continental Gage Station, and north from the Roger Road Wastewater Treatment Plant in Tucson, then downstream to the Pima/Pinal County line.

“This is a good determination,” Rosemont Mine opponent Lainie Levick said.

EPA Region 9 cautioned, however, that the Rapanos decision could still challenge much of Arizona surface water regulation.

Supreme Court decision requires corps studies

Rapanos split the Supreme Court, and Justice Anthony Kennedy added a controversial opinion that the Act requires a “significant nexus” or connection to a “navigable water of the United States.”

From 1975 until this decision, such a connection was not needed in streambeds that were “ephemeral” or often dry.

In 2007, the corps and Environmental Protection Agency established a post-Rapanos policy for at least part of the Act, stating that the corps would seek to make determinations of “traditional navigable waters” wherever necessary.

A common definition of this is that a waterway flows enough for small boats for an entire season or three months. The corps Web site for the Santa Cruz study adds, “This decision will facilitate evaluations of tributaries to the Santa Cruz River,”

One example of Santa Cruz River drainages and a tributary would be Davidson Canyon entering Cienega Creek, then Pantano Wash, then the Rillito River and hence the Santa Cruz north of Roger Road.

Arroyos near developments south of Green Valley and Continental and north of Tubac that enter the Santa Cruz would also be tributaries.

In the post-Rapanos arid West, these studies will continue to be necessary for many streambeds, such as the Santa Cruz River, unless Congress passes new legislation to addressing the legal confusions of the Clean Air Act.

The corps has the authority to issue or deny so-called “404” permits after an on-site “jurisdictional determination” has been made under Section 404 of the act on whether a permit is needed “for dredged or fill material into … navigable waters.”

Tucson-based study author, Corps Senior Project Manager and biologist Marjorie Blaine said, “The...studies of these two sections of the Santa Cruz River was something we had to do in order to effectively respond to…permit requests.”

Blaine said the corps has to do legal jurisdictional determinations as to whether permits are required.

According to Jennie Ayala of the Los Angeles District office of the corps, that governs Arizona and part of Southern California, “There is a growing backlog of Jurisdictional Determination requests (since Rapanos). Currently, across the L.A. District, there are about 400 pending requests.”

Congress tries to fix the Clean Water Act

Arizona, New Mexico and Nevada all have laws prohibiting their state agencies from adopting surface water quality regulations more stringent than federal laws. This means that if the Clean Water Act is challenged in court, state laws that essentially are no stronger than Act provisions are likely to also face litigation

State and Federal agencies differ as to how much the Rapanos decision ties their hands to govern, but Gov. Janet Napolitano and the Arizona Department of Environmental Quality have testified before Congress in support of identical bills called “The Clean Water Restoration Act,” introduced in the House and Senate. These bills would clarify the intent of the Clean Water Act and could supersede both Rapanos and a 2001 Supreme Court decision that limited protection of endangered species in isolated waters.

ADEQ testified in the House that the legislation is needed to protect the water quality of “approximately 96 percent of the stream miles in Arizona (that) are non-perennial.”

Rep. Raul Grijalva, D-Ariz., is one of 176 co-sponsors of the House Restoration Act, HR-242, and the Senate bill (S-1780) has 20 co-sponsors.

Rep. Gabrielle Giffords, D-Ariz., said Thursday she would introduce language to the sponsor to maintain the intent of the bill, but that reduces proposed federal authority — a major concern of some legislators.

“I support the important goal of the act, but also believe its language could be made clearer…..without resulting in a broad expansion of federal authority,” Giffords said.

ADEQ Water Quality Director Joan Card, who testified that HR 2421 is badly needed in the state, said she also believes “that ADEQ has statutory authority to adopt standards by rule for waters of the state.”

EPA Region 9’s enforcement division attorney Jessica Kao, among other agency personnel, said the Santa Cruz determination is important, locally, because she is less optimistic.

Kao is concerned that the state’s authority will be challenged when they try and regulate pollution anywhere that is not a “navigable water” or a tributary to one and that the courts may be tied up for a long time to come.

“I believe that even though the Rapanos decision came out of Section 404 of the CWA, it affects how the entire act is applied.”

Melinda Kassen of Boulder, Colo.-based nonprofit Trout Unlimited agreed, adding, “More than one lower court has determined that these limited definitions of “navigable waters” are required to apply the entire Clean Water Act, and it is often a difficult determination in the West.”

Rosemont Mine impacts could be significant

A large issue is whether this Santa Cruz navigable water designation could serve to slow or halt Coronado National Forest Service approval of a mine operating plan for the proposed Santa Rita Mountain Rosemont mine.

Levick, of Save the Scenic Santa Ritas, said, “Davidson Canyon joins Cienega Creek traveling northwest to join Pantano Wash and then the Rillito River before entering the Santa Cruz north of the Roger Road WWTP. They all have significant nexuses to the Santa Cruz River. This means that Davidson Canyon, where Rosemont wants to put their wastes, is now a feeder stream to a tributary of a section of the Santa Cruz River that is legally navigable, no matter how navigable Davidson may legally be.

“The corps will likely determine that Rosemont Mine wastes could impact Davidson Canyon or protected Cienega Creek. I believe that the corps will probably require Rosemont Mine owner Augusta Resource to have a ‘jurisdictional determination’ done as to whether they are doing harm to a tributary of the river.”

Levick said Rosemont probably will need to submit a Section 404 request for its wastes to be dumped in Davidson. The corps can approve or deny the request, based on whether it feels Augusta is acting in the public interest.

The Coronado has not yet asked any agencies, including the corps and Pima County, to become “cooperating agencies” to work on the Rosemont Environmental Impact Statement, an action demanded by Reps. Giffords and Grijalva several times.

Obviously,” Giffords District Coordinator Ron Barber said, “the May 23 action by the corps on the Santa Cruz is a new reason why the corps and others need to be called in quickly on Rosemont.”

Coronado spokesman John Able said Friday, “We don’t know what the cooperating agencies will be yet” and said he hoped to have more information next week.

Jennie Ayala of the corps said, “It is unknown (what our role will be as an agency regarding the Rosemont Mine) at this time. We have not yet received an application for a Section 404 permit, or received any other communication from the owner.”

Augusta had not responded to requests for comment before deadline for publication of this story.

‘Navigable waters’ determination

Pima County wants special ADEQ “outstanding water” designation for Davidson Canyon, which ultimately enters Tucson in the northern Santa Cruz study area, in part to strengthen the argument that the Rosemont and other potential mines cannot be allowed to pollute it.

On the other hand, the county has made it a short-term policy, particularly in a November 2007 memo from John Bernal, as well as in testimony to ADEQ in June, to demand that the corps and ADEQ prove that any waters that the agencies regulate are “navigable.”

The issues involved, and the repercussions, are very different. Bernal’s November memo suggested that county challenges to prove that Pima County waters are navigable would ultimately increase pressure on the Corps to approve “404” permits for County bond-approved and other “Capital Improvement Projects.”

And, in June testimony submitted to ADEQ on both Davidson designation as well as proposed statewide water quality rules, the county questioned state authority to conduct water quality rulemaking without demonstrating that they could legally regulate “navigable waters” and asked that such rulemaking be delayed, while simultaneously asking for “outstanding water” designation for Davidson.

This Santa Cruz TNW determination should enhance the likelihood that Pima County requests for Section 404 permits for their projects can be expeditiously processed, and potentially issued.

However, ADEQ’s Card says that, “Pima County has raised a number of concerns about the rulemaking and…they have asked us to delay it, which would unduly delay the Davidson Canyon designation.”

Card added, “The (corps) decision (on the Santa Cruz) is useful, however, if Pima County determines opposition to our rulemaking and the Davidson Canyon nomination, is no longer warranted.”

Pima County spokesperson Nicole Fyffe said Friday that the county has requested a meeting with ADEQ on Davidson Canyon and rulemaking.

Ayala said in an e-mail that the corps would be looking at a number of “navigable” study areas in Arizona including “direct tributaries to the Colorado River as well as direct and indirect tributaries to the Santa Cruz and Rillito rivers.”

Read the corps report at: http://www.spl.usace.army.mil/cms/files/projects/santacruz/Signed_Santa_Cruz_River_TNW_Determination.pdf

Dick Kamp is Wick Communications Environmental Liaison. Contact him at

bepdick@att.net.