For Star subscribers: U.S. rules will likely no longer cover streams that run only after storms, a big victory for Copper World mining and Vigneto homebuilding projects near Tucson.
Tony Davis A recent landmark U.S. Supreme Court ruling is likely to take a big bite out of the Clean Water Act’s reach in Arizona and the Southwest, particularly when it comes to regulating development along most of this state’s streams, many experts say.
People are also reading… The ruling could also take the regulatory reins off many future such projects across the Southwest. The ruling represents a major victory for property rights activists who say agencies enforcing the act have overstepped bounds on their authority placed by Congress when it passed the act in 1972. But environmentalists say the ruling will open the door to major environmental damage to rivers and streams and reverse more than four decades of how the Clean Water Act has been enforced here and nationally.
But the Pacific Legal Foundation, a nonprofit, property rights group that argued the Sacketts’ case, said it’s up to the states, not the federal government, to insure that rivers and wetlands are adequately protected. Five law profs agree on AZ impactsAt first glance, the Sackett ruling appears to apply mainly to wetlands, which are rare in Arizona. The ruling dealt with an Idaho case in which a married couple was challenging an EPA decision that they needed a Clean Water Act permit to build a home because it lies on a wetland near a ditch that feeds a creek, which empties into a nearby lake.
While Alito didn’t mention the kind of streams that dominate Arizona — ephemeral streams that flow only after rains — five law professors contacted by the Star agreed it will end or severely crimp any federal regulation of development along such streams. But he said it will be different from the existing rule, which offers legal protection of both ephemeral and intermittent streams under certain circumstances. There will be “specific aspects” of the current rule that no longer will be valid, given the court ruling, he said.
The ninth justice, Anthony Kennedy, argued for a test of whether a wetland in question had a “significant nexus,” or connection, with a navigable waterway. EPA and the Army Corps of Engineers have used that definition since then to determine if a waterway is regulated under the act. Scalia wrote that “waters of the U.S. doesn’t include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Intermittent streams could fare better under the Sackett ruling, several experts said. That’s in part because Scalia’s opinion in the 2006 Rapanos case contains a footnote that makes it clear the late justice was not wholly opposed to having intermittent streams covered, Gillespie said. Case Western Reserve University law professor Jonathan Adler, who is more conservative and skeptical of regulations than a lot of other environmental law professors, said he believes many intermittent streams won’t carry enough water to establish Clean Water Act jurisdiction,"certainly not over projects for economic development" as opposed to those with polluting discharges.
The Copper World project, which includes the entire Rosemont site on the Santa Ritas’ east slope and much more land on the range’s west slope, has never been formally determined to be either covered or not covered by the Clean Water Act. Gillespie has tried to get the Army Corps and the EPA to decide that they were covered, but neither agency had made a decision by the time of the Sackett ruling.
If that happens, “I would be very sad for the San Pedro — I would be absolutely crushed for the San Pedro,” said former U.S. Fish and Wildlife Service Arizona field supervisor Steve Spangle. He alleged four years ago, after his retirement, that he was forced by political pressure from federal higher-ups to back off his previously tough stance on the Vigneto project. Top Interior Department officials said they were only following the law in pushing Spangle to change his stance.
Water quality in these streams when they do carry water could also suffer, he said. If washes are filled in with sediment or any materials carrying pollutants, that will hurt water quality. Another threat will be the loading of phosphorous, nitrogen and other nutrients into streams from agricultural runoff, he said. The nutrients can generate toxic algae blooms that can make water undrinkable, he said.
“As ADEQ learns more about how the Sackett case affects regulation, ADEQ will work with state leadership to ensure Arizona’s waters continue to be protected,” Oppleman said For instance, Oro Valley town officials and the state Land Department have long talked and planned of building a major development in an area called Arroyo Grande, a huge swath of state land along North Oracle Road lying just north of the town’s current boundary.
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