News Analysis: State and fed clean water actions could restrict pollution

Editor’s Note: This is part one of a two-part series. Part two will appear in the Sunday edition of the Green Valley News and Sun.

The Supreme Court, Bush administration and Arizona Department of Environmental Quality all have released decisions impacting regulation of surface water pollution in arid lands and Southern Arizona.

On Wednesday, Dec. 3, the Environmental Protection Agency determined that two disputed sections of the Santa Cruz River are “navigable” under federal guidelines released the same day, and thus are protected under the Clean Water Act.

The two Santa Cruz River segments are south and north of Tucson, with one segment stretching from Tubac to Continental and the other extending from Pima County’s Roger Road sewage plant to the Pinal County line.

The same day, ADEQ set stringent “outstanding water” surface water quality standards for Davidson Canyon in Pima County, which drains into the Santa Cruz River, and set new statewide water quality standards.

In Southern Arizona, the Santa Cruz determination could combine with the Davidson Canyon decision to make it harder for two controversial developments to meet all state and federal water quality standards and to show that they will not obstruct waters draining into the Santa Cruz, as required under the Clean Water Act. They must show that in order to receive U.S. Army Corps of Engineer permits.

The proposed Augusta Resource Corp. Rosemont copper mine would drain into the Davidson area, as would the partially permitted California Portland Cement quarry located along Davidson Canyon.

In spite of these regional decisions, in parts of the West where water in stream beds flows intermittently, water pollution enforcement and actions to keep streambeds clear under the Act by EPA, the Corps, and other agencies may remain lax and confused until the Obama administration takes clear-cut action or until Congress passes a law to supersede the controversial Rapanos Supreme Court decision.

Federal Clean Water Act paralysis

In June 2006, the Supreme Court issued a ruling in the Rapanos case dealing with whether a Michigan wetlands on private land that had an uncertain connection to a waterway could be regulated under the Clean Water Act. After a 26-year succession of legal cases strengthening the Clean Water Act’s authority, the court began weakening the act in 2001 with a decision that migrating birds on isolated wetlands were not protected.

In the Rapanos decision, four Supreme Court Justices voted in favor of upholding the Nixon-era legal interpretation that all streambeds are protected; four stated that water must be flowing for the act to apply, and Justice Anthony Kennedy stated that there must be a “significant nexus” to navigable water.

Kennedy’s puzzling terms left a huge number of streambeds in the arid West potentially unprotected, including 96 percent in Arizona according to the EPA, and fairly close to that percentage in Nevada, New Mexico and Colorado.

“A lot of unprotected real estate,” as David Smith, EPA Region 9’s wetland coordinator, put it last May.

Quickly, there were dozens of court definitions in different cases that defined post-Rapanos “navigability.” For decades it was widely presumed that the intent of Congress in 1972 was that anywhere that water could flow would be protected under the act.

Threatened and actual lawsuits over potential or actual EPA enforcement led to a halt in enforcement by EPA and many regulatory agencies. Developers and sewage plants faced a large backlog of “Section 404” Army Corps permits under the Clean Water Act that would allow construction in disputed streambed areas.

U.S. Rep. James Oberstar (D-Minn.), and Sen. Russ Feingold, (D-Wis.), introduced the Clean Water Restoration Act in 2007 to return the act to pre-2001 conditions.

Arizona Gov. Janet Napolitano and ADEQ strongly supported the legislation as has U.S. Rep. Raul Grijalva (D-Ariz.). Rep. Gabrielle Giffords (D-Ariz.) pledged in May to work on language that would make the bill palatable to moderate members of Congress.

The CWRA remains in limbo pending a new administration and reintroduction in the 111th Congress. Oberstar spokeswoman Mary Kerr emphasized that any language revisions that can increase the chance of passing the bill are welcome.

On July 17, then-candidate Barack Obama sent an e-mail to this writer stating that upon taking office, he “will support and sign into law legislation that effectively restores the historical scope of the Clean Water Act and thereby advances environmental protection, community values and public health objectives.”

On Dec. 1, 2008, the Supreme Court declined to revisit or clarify the Rapanos decision. Two days later, EPA and the Corps of Engineers issued guidelines to “clarify” how to implement Rapanos which EPA used to determine the Santa Cruz “navigable.”

Growing congressional anger gets partial Santa Cruz/LA River protection.

First, however, let us return to May, when Tucson-based Corps Senior Project Manager and biologist Marjorie Blaine and the Los Angeles regional corps office, determined that the Santa Cruz was “navigable” along two stretches: from theTubac Gage Station downstream to the Continental Gage Station, and north from the Roger Road Wastewater Treatment Plant in Tucson downstream to the Pima/Pinal county line. This meant that any streambeds that could be demonstrated to have a connection to those parts of the river would be regulated by the Act.

The information was publicized in mid-June, but by the beginning of July the Corps office in Washington, D.C. put the Santa Cruz decision under a bewildering internal “review,” with contradictory statements as to whether the decision was in force. Strong allegations arose that the Corps was responding to political pressure from development interests. Pima County, also, appeared to have pressured the Corps while simultaneously trying to protect county conservation interests.

The Corps actions drew the ire of Grijalva, Giffords and heavier congressional hitters, including Oberstar and Rep. Henry Waxman (D-Cal.), who chairs the House Energy and Commerce Committee.

Less than a week later, internal memos surfaced from EPA’s enforcement division showing that over half — at least 800 — of EPA enforcement actions had been deliberately halted or slowed due to Rapanos by December 2007, in spite of agency testimony to Congress to the contrary. The EPA cover-up drew demands by Waxman and Oberstar for enforcement case studies (followed by congressional subpoenas to EPA Administrator Stephen Johnson, who responded to neither demands nor subpoenas).

Waxman and Oberstar also wrote a letter in August to Johnson demanding that the EPA override the Corps “review” and issue a special determination on the navigability of the Santa Cruz as well as the Los Angeles river (in Waxman’s district), after Johnson did not respond to Grijalva’s requests to take action.

On Dec. 3, after the Supreme Court declined to revisit Rapanos, EPA and the Corps issued a new (second) joint guidance document that defined how the two agencies would operate. In a joint statement on the guidelines, EPA Assistant Administrator Benjamin Grumbles and U.S. Army Corps of Engineers Assistant Secretary John Paul Woodley said, “We are providing improved guidance today to ensure the information is in place to fully protect the nation’s streams and wetlands under the Clean Water Act. This will enable the agencies to make clear, consistent, and predictable jurisdictional determinations.”

EPA’s Grumbles then used the guidelines to justify the Santa Cruz and LA river determination that Waxman and Oberstar had demanded saying, “evidence ... indicate(s) a susceptibility for use in the future for commercial navigation, including commercial water-borne recreation evidence that the study reaches, or portions thereof, have been navigated (and) evidence of the likelihood of future commercial navigation use. I find that this determination is consistent with the provisions of the Dec. 3, 2008 Rapanos guidance.”

Grumbles added in a footnote that other sections of the Santa Cruz River have yet to be determined navigable. However, he added, “EPA is proceeding with its geographic jurisdictional analysis of the remainder of the Santa Cruz River and the Los Angeles River and will make decisions for both when our review is complete.”