River’s status prompts special county meeting

Pima County Supervisors will meet in special session Friday to consider a federal decision removing the navigable river designation for parts of the Santa Cruz River—a decision that may make it easier for development of the Rosemont Mine.

Mine opponents say a declaration that any part of the river is navigable means it’s subject to the federal Clean Water Act. People and corporations aren’t permitted to pollute navigable waters.

Interestingly, in the 1990s, a state commission ruled that no part of the Santa Cruz River was navigable, but that probably won’t be an issue in the current dispute.

Mine opponents had looked on the navigable stream designation for two reaches of about 54 miles of the Santa Cruz River as the way to halt the mine.

Two months, a Corps memo called parts of the river navigable, but it recently withdrew that statement, causing confusion for some mine opponents.

U.S. Reps. Gabrielle Giffords and Raul Grijalva, both D-Ariz,, who represent Southern Arizona, have called for an explanation of the Corps’ apparent change.

Giffords, in a letter to Corps, asked what prompted the change.

Giffords’s letter said if the “suspension were to become permanent, it would leave the entire Tucson watershed without protection under the Clean Water Act.

“This possibility is of great concern to me and my constituents,” she said.

Grijalva blamed the decision on the outgoing Bush administration scratching the backs of those who had helped it.

If the federal decision holds, it means the river’s waters cannot be protected under the Clean Water Act and waste from the proposed Rosemont Mine and elsewhere may be legally dumped where it could flow in to the river.

The proposed Rosemont Mine is a thorny issue, with many local residents and groups stoutly opposing it.

Rosemont owner, Augusta Resource, and others, say the mine is legal and can be built under terms of an 1872 mining law.

Adding to the confusion, the Corps’ Los Angeles office said last week the designation of parts of the Santa Cruz as navigable remains in effect during a review of the decision.

In the 1990s, the Arizona Navigable Stream Adjudication Commission set out to determine if any of the state’s approximately 39,039 water courses were navigable when Arizona became a state, Feb. 14, 1918.

The five-member state commission held hearings throughout the state, including some in Pima and Santa Cruz counties.

Here, the commission was looking into the Santa Cruz River and it later ruled the river had never been navigable.

The Santa Cruz springs to life in Southeastern Santa Cruz County, flows into Mexico and makes a U-turn before it re-enters the state about six miles east of Nogales, Ariz.

Much of it is dry during most of the year, except a stretch from Rio Rico to about Amado, which is sustained by wastewater from a treatment plant.

Last Sept. 5, the state’s Joint Legislative Budget Committee issued an overview of the Stream Adjudication Commission’s work.

In it, the committee noted that the adjudication commission’s “statutory authority expires (or “sunsets) at the end of FY 2008.”

It added “Given the appeals, regarding the Santa Cruz and San Pedro Rivers, the commission is seeking to have its statutory authority extended” in time.

The Arizona Center for Law in the Public Interest has appealed the state rulings on the Santa Cruz and San Pedro rivers.

The fiscal year expired June 30, 2008. The adjudication commission was funded by appropriations amounting to about $180,000 reported Phoenix lawyer Curtis Jennings, working with the adjudication commission.

Jennings said the federal ruling on navigable streams might mean that any stream or wash, no matter how small, is considered navigable if it flows into navigable waters.

If that ruling holds, said Jennings, the washes that enter the Santa Cruz River could be considered navigable because that river flows to the Gila River that empties into the Colorado River, the only truly navigable body of flowing water.

Harlan Agnew of the Pima County Attorney’s office, who sometimes works with Phoenix lawyer Jennings on the Santa Cruz decision, said all the Corps has done was withdraw its memorandum about the navigability, and so far, no explanation has been offered.

“Maybe they didn’t like the language, the form” of the earlier announcement or elected officials asked for further clarification,” he said.

jlamb@gvnews.com | 547-9749