News Analysis: Pima County and the crippled Clean Water Act

Part 2 of 3

The 2006 Rapanos Supreme Court decision has weakened and disrupted the Clean Water Act by requiring that sometimes dry waterways such as the Santa Cruz River must be declared navigable.

The EPA has actually halted enforcement of the majority of its water pollution cases and the Army Corps of Engineers has a huge backlog of permits it has not issued to keep waterways flowing.

The goal of the Oberstar-Feingold Clean Water Restoration Act is to restore the Act to pre-2001 court restrictions and it has received support from Governor Napolitano and 176 members of Congress including U.S. Rep. Raul Grijalva, D-Ariz. Sen. Barack Obama of Illinois has pledged to achieve that restoration if elected.

Industry likes Rapanos

There are many who do not want to see the Oberstar-Feingold bill pass and who disagree with Obama. It is in their interests to keep big government off their backs.

Among them are the organizations that form WAC—the Waters Advocacy Coalition that presented congressional testimony hostile to Oberstar’s bill at the same April hearing that ADEQ’s Joan Card testified in support of the bill.

This “grass roots” organization includes 28 influential groups such as the National Mining Association, American Farm Bureau Federation, American Forest and Paper Association, American Public Power Association, Edison Electric Institute, National Association of Home Builders, National Association of Realtors and the National Association of Counties, of which Pima is a member.

The testimony was presented by Washington attorney Virginia Albrecht.

According to John Bernal, Pima County Public Works assistant administrator, Albrecht has “assisted the county for several years under contract to the county attorney.” (Albrecht left a message for this reporter with her secretary that she would let Pima County discuss county matters.)

Albrecht is a respected Clean Water Act attorney working for those in favor of mining, development, industry and agriculture and has argued before the Supreme Court before.

She argued at the hearing that Oberstar-Feingold would impose “more federal regulation… [that] could have dire and unintended consequences by imposing further regulatory burdens on states and local communities, usurping state authorities”.

She called on Congress to “direct EPA and the corps to develop comprehensive regulations that provide greater clarity and predictability regarding the extent and limit of federal jurisdiction.”

In other words, to put into concrete that the Clean Water Act will remain clearly defined as weak.

Pima exploits Rapanos, weakens Rosemont Mine opposition

Albrecht apparently advised Pima County officials in their battle to claim that the Rapanos decision is indeed one that must be abided by—especially when it ensures that pollution and water diversion permits will fit individuals’ needs.

As far back as November 2007, the county was operating under a memo from John Bernal that suggested that proving navigability should be a county strategy in addressing Army Corps permitting issues in order to try and get some issued. Thousands of such permits are estimated to be backlogged nationally as a result of Rapanos.

In June, Deputy County Attorney Harlan Agnew spoke to ADEQ insisting that the agency could not establish new restrictive pollution regulations unless they proved that the streams were tributaries to navigable waters while, at the same time, asking for special protection for Davidson Canyon — potentially from the proposed Rosemont Mine and other developments near the Santa Rita Mountains.

ADEQ’s Card interpreted the testimony as declaring that the state could not regulate pollution—including special protection for Davison Canyon from mining. Did Pima County really care about polluting mines, wondered the agency aloud, or was it playing legal-political games?

Again, in the post-Rapanos Clean Water Act world, a nexus to navigable water must be established to get the EPA and the Army Corps to protect such waterways as the Santa Cruz River and tributaries such as the Rillito River or Davidson Canyon.

It became public knowledge in early-June that the Los Angeles District office had declared the Santa Cruz River a “traditionally navigable water.”

Albrecht played a role in various internal county memos, such as one on June 25 that demanded the corps provide better justification for navigability of the Santa Cruz. She may have also assisted ex-Public Works staffer Greg Santos with his 10-page draft appeal written at that time against the navigable determination, or perhaps it was the county attorney’s office.

Sources in Washington close to the Army Corps have suggested that Albrecht may have met with Army Assistant Secretary John Paul Woodley immediately prior to his mysterious suspension of Santa Cruz navigability status at the beginning of July. Bernal says that the county had no part in a Woodley meeting and nothing is apparent in memos obtained under the Freedom of Information Act.

If the Santa Cruz is denied navigability determination, it is possible that this could effectively stop the Army Corps from issuing or denying a permit for the proposed Rosemont mine for its impacts on Davidson Canyon.

On July 18, following newspaper reports on the county policy, the Pima Board of Supervisors called for an investigation of staff to determine if it had been hindering the navigable designation of the Santa Cruz River.

Yet, as recently as July 25, Pima County Administrator Chuck Huckelberry wrote to the Army Corps of Engineers to ask whether the county would be subject to the Clean Water Act Section 402 pollution discharge requirements related to storm water control if Pima voluntarily agreed to legal permit conditions addressing obstruction of water ways.

In other words, would the EPA or ADEQ not enforce the Clean Water Act?

In an Aug. 1, letter to EPA Administrator Stephen Johnson, Grijalva said he wants the EPA to investigate the Army Corps suspension of Santa Cruz River navigability. If the Corps would not declare the two stretches navigable, he asked the EPA to use their authority to override the Corps, as a “special case” based on unique features including its crossing international, tribal and other boundaries. Subsequently, EPA “can and must use its authority under the…Act..to declare the whole of the…River….navigable…so that the River and its tributaries can continue to be protected from un-permitted pollution and destruction.”

Grijalva added that the Santa Cruz case “appears to be the tip of the iceberg” of post-Rapanos damage. He demanded details of EPA Region 9 Rapanos-driven non-enforcement of pollution cases (the majority of them) discussed in a March memo from EPA’s Washington Enforcement Assistant Administrator that was later released by Congressman Waxman.

Waxman and Oberstar upped the pressure on the Corps in an Aug. 7 letter demanding explanations for how and why they were analyzing the Santa Cruz and Los Angeles Rivers. They referred to a newspaper report originally published in the Green Valley News as one source of concern.

Dick Kamp is environmental liason for Wick Communications Co.

Part 3 will appear on Friday.