Corps’ action on Santa Cruz ruffles feathers

The chairmen of two influential congressional committees are challenging the basis being used by the Army Corps of Engineers and the Environmental Protection Agency to determine “navigability” of the Santa Cruz and the Los Angeles rivers.

Such a determination has been necessary since the 2006 U.S. Supreme Court decision in United States v. Rapanos, which reduced the authority of the Clean Water Act. Failure to get a navigability determination might mean that the act does not protect all or parts of a stream or any of its tributaries from potential polluters.

Two sections of the Santa Cruz River in Pima County were declared navigable in May but the designation was suspended by the Corps in early July “for review.” Just a relatively small section of the Los Angeles River was declared navigable in June, largely an area affected by Pacific Ocean tides.

U.S. Reps. Henry Waxman, D-Calif., and James Oberstar, D-Minn., are chairmen of the Committees on Oversight and Government Reform, and Transportation and Infrastructure. Oberstar has introduced the Clean Water Restoration Act to address Rapanos and other Supreme Court interpretations of the act.

The two responded to a request by Rep. Raul Grijalva, D-Ariz. to investigate the methodology being used by the Army Corps.

In an Aug. 7 letter, they questioned whether the Army Corps’ methodology to determine navigability of the Santa Cruz River and possibly the Los Angeles River was based on the 1899 Rivers and Harbors Act. The act says that said that in order to receive money from Congress, a river or harbor has to be commercially navigable. The congressmen wrote that this would be in violation of the Clean Water Act as well as interpretations of the Rapanos decision.

The National Association of Homebuilders national, Central Arizona and Southern Arizona offices wrote a letter to the Corps on July 25 suggesting it implement the Harbors Act methodology.

Oberstar and Waxman wrote, “Utilization of the (Homebuilders) approach….would have serious adverse impacts to the entire Clean Water Act program. For instance, this approach could result in the removal of 96 percent of the State of Arizona’s surface waters from Clean Water Act protections.”

They added, the Corps appears to be using an ad hoc approach to determining navigability, “ …subject to complete reversal or suspension without any clear or objective standard.”

In addition to demanding all correspondence and communications between the Corps and other parties regarding the navigability determinations for the Santa Cruz and Los Angeles rivers, Waxman and Oberstar also insisted on a series of legal questions clarifying how the Clean Water Act definition of navigable water is being applied.

Dick Kamp is environmental liason for Wick Communications Co.