1. RIVERS: Corps comes under fire for suspending CWA determination for Ariz. river (Land Letter, 07/24/2008)

April Reese, Land Letter Western reporter

A recent decision by the Army Corps of Engineers to suspend a Clean Water Act determination for stretches of Arizona's Santa Cruz River is shaping up as an important test case for new CWA guidelines, which have the potential to ease the way for more development along waterways -- especially in the arid West.

The decision, which critics say could clear a regulatory hurdle for a controversial copper mine proposed for the Santa Rita Mountains, is also prompting allegations of political pressure by certain Pima County staffers, who corresponded with the corps in the weeks leading up to the agency's move.

In May, the corps concluded that two 54-mile segments of the river, one south of Tucson and one above the city, should retain their status as "traditional navigable waters" under the Clean Water Act. Under the designation, any proposed development or disturbance would need a federal permit under section 404 of the law.

But earlier this month, the corps suspended the determination, throwing protections for the river into limbo and potentially helping to clear the way for development projects in the watershed, including a proposal to build the Rosemont Mine on a tributary of the river.

The document is no longer posted on the corps' Web site under "traditional navigable waters" decisions. Instead, it has been replaced with a message reading, "This document has been temporarily removed pending further policy review."

The suspension has set off a flurry of public criticism of the agency from the Pima County Board of Supervisors and the state's two members of Congress representing Tucson, Rep. Gabrielle Giffords (D) and Rep. Raúl Grijalva (D), who are pressuring the corps to explain its decision to review the determination.

In a July 10 letter, Giffords asked the corps to provide "an immediate and detailed explanation" of its decision to suspend its finding on the Santa Cruz River. "If this suspension were to become permanent, it would leave the entire Tucson watershed without protection under the Clean Water Act," she wrote.

Grijalva also sent the corps a letter requesting an explanation. "Even though these waterways may no longer flow year-round, their ephemeral, intermittent or underground flows are still important to the ecosystem and human populations of the area," Grijalva wrote.

In a July 18 response to Grijalva's letter, John Paul Woodley, assistant secretary of the Army for Civil Works, told the congressman that the corps decided to review the determination for the Santa Cruz River because new revisions to the Section 404 guidance issued by the corps and EPA last year are currently being vetted by the Office of Management and Budget.

The revisions are the latest attempt to clarify the implications of joint Supreme Court rulings issued in 2006, Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers.

In essence, under the rulings, a tributary of a navigable waterway has to be relatively permanent to be regulated. That is a particularly high threshold in the arid West, where streams tend to dry up during certain times of the year and may not meet the Clean Water Act's definition of a "traditional navigable waterway" (Land Letter, Aug. 9, 2007).

Noting that the Santa Cruz River is "an important case," Woodley said in his letter, "these determinations [for the two river segments] coincide with the clarifying guidance documents nearing completion. Therefore, I felt it was important to have these determinations reviewed at the headquarters level to ensure that [they] are consistent with policy guidance currently being developed."

Officials from corps headquarters planned to meet this week with regional corps officials to "review all the relevant facts," Woodley said.

Implications for Rosemont Mine

Critics of the corps' decision are concerned about its implications for various forms of development along the river and its tributaries, including the proposed Rosemont Mine. If the corps' original determination stands, Augusta Resource Corp., the company that wants to open the mine, would need to apply for federal permits under Section 404 of the Clean Water Act. If the agency reverses the determination, it will not need such permits, removing one potential obstacle to development of the mine.

"Section 404 would provide a real strong lever for the communities that would rather not have a new functioning copper mine right above their watershed," said Matt Skroch, executive director of the Sky Island Alliance.

Augusta officials had said, prior to the corps' reversal, that it intended to file a Section 404 permit with the corps for the mine, which would involve depositing tailings in Barrel Canyon, part of the Santa Cruz River watershed.

Woodley said in his letter to Grijalva that during the review, which is expected to take at least two months, the corps will either make "preliminary" determinations on proposed projects or, in certain cases, delay permit decisions until the reassessment is complete. He emphasized that the determinations have merely been suspended and "have not been changed."

A case of undue influence?

But while the corps maintains its decision was based on prudence in light of guidelines in flux, evidence is mounting to suggest it may have been influenced by certain Pima County officials.

A series of e-mails and memos secured by environmental groups under the Freedom of Information Act show that officials in Pima County's public works and transportation departments expressed concern about the determination in the weeks prior to the corps decision to suspend it, arguing that the county should have jurisdiction over the Santa Cruz River.

One of the memos from county staff refers to the Clean Water Act as a "troublesome regulatory restraint." Other e-mails, for which only the subject line and correspondents' names are revealed due to attorney-client privilege, show that several county staffers from the two departments discussed the Santa Cruz River with Virginia Albrecht, a Washington, D.C.-based attorney with the firm Hunton & Williams. Albrecht has defended developers in court cases challenging Clean Water Act regulations, and, according to her bio on the Hunton & Williams Web site, she serves on the legal action committee for the National Association of Homebuilders, which filed an amicus brief in support of John Rapanos, the landowner in the Rapanos case.

"The way the county engaged in this determination was in terms of time and money," said Skroch, who has reviewed the correspondence and provided some of the e-mails to Land Letter. "It was not in terms of protecting natural resources."

The staffers appear to have acted independently of the Pima County Board of Supervisors, which expressed its disdain over the matter at a July 18 public meeting.

"At this point, it does seem likely that some county staff may have influenced the decision to some degree," said Board Chairman Richard Elias in a phone interview Tuesday. "They entered into the realm of policy, and they need to stay in the realm of the bureaucracy."

Elias noted that the staffers' unauthorized push for lifting CWA restrictions is at odds with the county's conservation policies. Pima County has one of the most comprehensive and widely emulated conservation plans in the country -- the Sonoran Desert Conservation Plan -- and the staffers' actions contradicted the stated goals of the 10-year-old plan, he said.

"We became very disturbed as a board, because obviously the overarching policy we have is to protect our waterways in the best way possible," Elias said. "It made us look like hypocrites."

The board of supervisors on Friday voted unanimously to reaffirm the county's support of the corps' determination and its overall commitment to restricting development to protect the river. The board also ordered an internal investigation.

The county plans to meet with corps officials to urge them to retain the designation and is crafting a resolution reiterating its commitment to watershed protection, Elias said.

A river used to run through it

At the heart of the question of whether the Santa Cruz River is "navigable" and therefore should come under the protective wing of the Clean Water Act lies the vigor of its flows. While the river, which cuts through the city of Tucson, once ran year-round, depletions and diversions over the past 70 years have rendered it an ephemeral stream. In an ironic twist, more water flows in the two stretches the corps designated for Clean Water Act protection because of effluent discharge from a wastewater treatment plant.

Ed Taczanowsky, president of the Southern Arizona Home Builders Association, said his organization believes the corps made the right decision in suspending the determination, because the river in its current state cannot support river traffic. "The Santa Cruz River does not flow year-round, and to say it qualifies as a navigable river is a stretch," he said, adding that if the determination stands, it could hurt development.

Despite the association's opposition to the determination, it did not press the corps to re-think the determination, Taczanowsky added.

But Skroch of the Sky Island Alliance argues that since the river was once a perennial waterway and is only ephemeral now because of human activity, it should be counted as a "traditional navigable waterway" under the Clean Water Act. And flows from the treatment plant sufficiently increase the river's volume, he added.

As the corps mulls over the question of whether the Santa Cruz River's flows qualify for CWA protections, Congress has introduced legislation aimed at preventing such uncertainty in the future by essentially defining all U.S. waters, including impermanent waterways, as subject to federal oversight.

Grijalva is a cosponsor of the House bill, and Arizona Gov. Janet Napolitano (D) and officials with the Arizona Department of Environmental Quality have testified in support of House and Senate bills. No action has been taken on the measures since hearings were held in both houses in April.

April Reese writes from Santa Fe, N.M.

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