News Analysis - Pulling together to end a pollution enforcement disaster

Part 3 of 3

T he 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. At the same time that the Environmental Protection Agency 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.

[Monday, the EPA took over protection of the Santa Cruz from the Corps. The Pima County Board of Supervisors had urged the transfer.]

Meanwhile, Pima County staff and attorneys, with the help of a high-powered Washington attorney, have worked to use Rapanos as an argument that county projects cannot be effectively regulated by the Arizona Department of Environmental Quality and the federal government. Among many implications, their actions undermine Pima County’s opposition to the proposed Rosemont Mine. 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-Arizona. Senator Barack Obama of Illinois has pledged to achieve that restoration if elected.

Perhaps Pima County motivations can best be described as myopic. They wanted to move on with public works, they did not want some areas to get regulated where they contend regulations are unjustified. Rather than fighting on behalf of the substance of county concerns, staffers expended a lot of energy and taxpayer dollars exploiting the weaknesses of the Clean Water Act after a bad Supreme Court decision.

Pima County, like other less environmentally sympathetic regional and local governments in the West, has been making a pact with a devil. The county has been encouraging the long list of growing failures to regulate water in the West and nationally and these, in turn, are used as precedents by polluters and developers to cow a docile Bush EPA and the Army Corps of Engineers.

Deputy County Attorney Harlan Agnew described to a reporter in June his objections to ADEQ trying to over-regulate sewage discharges and perhaps he is right. Public Works Assistant Administrator John Bernal has been concerned about public works projects in La Canada wash not getting permitted efficiently. Perhaps he is right; he is certainly correct that there is a huge backlog of Army Corps permits not getting issued.

However, they and other staff have been very wrong in aiding and abetting the dismantling of a federal regulatory tool that has saved lives and the environment at a time that the Rapanos decision has left it interpreted as impotent.

Bernal, the former commissioner of the U.S. Section of the International Boundary and Water Commission under President Bill Clinton, now says, “The winds have shifted in the county” in fighting the Clean Water Act. He adds, “Rapanos has sowed a lot of confusion and it has slowed our ability to get our projects permitted. I guess we need congressional reform to restore the strength of the Clean Water Act.”

He’s right, and bipartisan forces need to work quickly to heal this problem just as soon as the next president enters office. If they have problems with Oberstar-Feingold language—then they must come up with language that will work, and get the votes in both chambers to pass it. They must avoid bureaucratic excuses as to why industry and developments should not have water impacts regulated rather than arguing on the merits of actual water quality and obstruction impacts.

Pima is one of many local governments exploiting a federal breakdown during an administration that has encouraged federal regulatory ambiguity.

Region 9 EPA staffers have described Southern California towns as hostile to regulation that have challenged any Clean Water Act pollution regulations affecting sewage plants and industrial plants located by dry washes.

In Nevada, according to EPA personnel, state and municipal regulatory officials have welcomed Rapanos as an excuse to back off from pollution enforcement.

The revelation that “conservationist” Pima County can act against the interests of conservation can be a regional lesson on balancing development and environmental protection. The crisis of the Clean Water Act, however, is growing. Cities, counties, states and private citizens should be joining together to demand that Congress pass Oberstar-Feingold and halt the march to return to pre-Nixon water degradation in Arizona and across the country. Senator Obama says he will help. Arizona Sen. John McCain’s supporters should demand the same from their candidate. The next White House should see this as a top environmental priority.

Dick Kamp is environmental liaison for Wick Communications Co.

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