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Tucson, Arizona | Published: 07.13.2008
Pima County officials boast about their efforts to save open space and curb private development of sensitive lands through their Sonoran Desert Conservation Plan.
But at the same time, they've quietly opposed a measure that would bring tough federal environmental regulations of their own riverside road and flood-control projects, public records show.
In the past year, county officials repeatedly told federal officials in memos that they should treat the distant Colorado River as the closest navigable river to Tucson.
If that position became formal policy, it would forestall strict regulations under the Clean Water Act of projects built along most rivers and washes in the Tucson area.
That's because water courses need a significant connection to a navigable stream before they are regulated.
Several county memos arguing that case surfaced last week, shortly after the U.S. Army Corps of Engineers suspended a decision to declare 54 miles of the Santa Cruz River, between Tubac and the Pinal County line, as navigable.
The declaration, now on hold for at least 60 days while the Corps reconsiders it, would have led to tough regulations of private development and public-works projects along the Santa Cruz and its major tributaries. The declaration had come as the result of a 2006 U.S. Supreme Court ruling that navigable streams would be the benchmark guiding regulation.
The release of the memos prompted Pima County Board of Supervisors Chairman Richard Elias to call a special board meeting for Friday to get the board on record as supporting a navigable declaration, and therefore environmental regulation, for the Santa Cruz.
Elias and several environmentalists said they are concerned the memos go directly against the county's conservation work.
A lack of regulation would bring an end to a long-held practice in which the Army Corps of Engineers uses federal permits to prod developers and county officials to buy land to compensate for their projects' effects on imperiled species.
A decade ago, such permits were a driving force for the county to start work on a federal habitat-protection plan.
County officials hoped that once they got approval of a broad, long-term, land-saving plan, which still hasn't happened, they could get federal assurances of clearance for individual projects.
The need for a federal Clean Water permit also could strictly regulate if not block the proposed Rosemont mine.
Given those facts, Elias said he doesn't think opposing the river regulations is a position Pima County should take.
"Frankly, protecting the clean water that we have here in Pima County is really the most important thing," Elias said.
Those concerns and fears are "false," stemming from a misunderstanding, County Administrator Chuck Huckelberry countered. All the county is trying to do is push the federal government to make clear decisions on whether county projects need permits, he said.
Delays in these decisions have lasted more than a year, costing the county time and lots of money, Huckelberry said. The county spends about $150 million yearly on public-works projects, although many, such as new buildings, often don't go near washes and areas affected by this issue, he added.
The county has never argued against having to save land to compensate for its projects, Huckelberry said.
"All we said is, 'Give us an answer, and give us clear answers,' " he said. "Our public policy is to implement the conservation plan. That policy will continue to be carried out, regardless of what the staff is saying in memos."
Six memos between November 2007 and this May, most written by Deputy County Administrator John Bernal, who oversees Public Works, and Harlan Agnew, a deputy county attorney, argued to the Corps of Engineers and the Environmental Protection Agency in favor of policies that would, in effect, eliminate the need for federal Clean Water Act permits on Tucson waterways.
To critics, the Public Works memos stand in sharp contrast to Huckelberry's June 10 memo to the Board of Supervisors that chronicled the history of the county's commitment to conservation and environmental monitoring.
That memo pointed to the county's approval in 2000 of the Sonoran Desert Conservation Plan, the adoption in 2001 of a system to prod developers to set aside land as they build, and the continued buys of open space through bonds.
"From the desert valleys in the west to the Catalina and Rincon Mountains in eastern Pima County, the Sonoran Desert has some of the highest diversity of plants and animals in North America," he wrote.
"The biological heritage … is so rich that maintaining a healthy ecosystem here is now considered a global conservation priority."
There are "serious contradictions" between such statements and the newly released memos on navigable rivers, said Matt Skroch, director of the environmental group Sky Island Alliance.
They represent a blatant example of a longtime "disconnect" between county Public Works officials and county planners over conservation issues, said Carolyn Campbell, director of the Coalition for Sonoran Desert Protection.
"The Public Works officials don't seem to accept that they are part of the conservation plan," Campbell said. "They seem to be in line with the development community in wanting less regulation."
County officials, however, say their concern stems from the fact that the 2006 U.S. Supreme Court decision limited federal protection of rivers and streams but left it unclear exactly which streams deserve protection.
Until then, many if not most streams and rivers in the Tucson area were regulated, requiring developers and public officials to get permits for projects along them.
The court decision and its aftermath have "thrown the entire administration of the Clean Water Act in limbo," Huckelberry said.
Huckelberry said he doesn't think county officials would object to the designation of the Santa Cruz as navigable, as long as that wouldn't affect its ownership of lands along the river.
The county probably has spent at least $10 million to buy such lands, and under the typical rule of law, the declaration of a navigable waterway vests ownership in the state or federal government, he said.
But just last week, his deputy Bernal said in an interview that the county has recently been arguing with the Corps over the legal status of five washes that would be crossed for a $41 million widening project for La Cañada Drive between Ina Road and Calle Concordia on the Northwest Side.
The county had again argued that the Colorado was the closest navigable river to this area. If that view had prevailed, the wash crossings wouldn't have been deemed significant, Bernal said.
But in June, the Corps had concluded that the washes did have a significant connection to the Santa Cruz — which at the time that agency had concluded was navigable because it flows year-round at two spots because of the addition of treated wastewater.
Campbell and Skroch are skeptical of Huckelberry's explanation that they are misunderstanding what the county memos mean.
"These extensive legal documents and memos were very clear to me," Campbell said.
If there is a misunderstanding, it needs to be cleared up at a public meeting, Elias said.
"Then there will be complete clarity as to where Pima County stands," he said.
● Contact reporter Tony Davis at 806-7746 or tdavis@azstarnet.com.
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