Mon, Jul 06, 2009

Tucson Region

Congressmen probe review of decision that Santa Cruz is navigable

By Tony Davis
Arizona Daily Star
Tucson, Arizona | Published: 08.09.2008
Two congressional committee chairmen are investigating why a decision was suspended that would have assured regulation of development and pollution along the Santa Cruz River and its tributaries.
In early July, the U.S. Army Corps of Engineers pulled back on an earlier determination that 54 miles of the Santa Cruz is a navigable river, saying it will review that decision for at least 60 days.
Late this week, U.S. Reps. Henry Waxman of California and James Oberstar of Minnesota, both Democrats, blasted the Corps' action.
In a letter to the agency, they said the Bush administration must explain the Santa Cruz decision in detail and provide unedited copies of all letters and other communications to and from federal agencies that are related to the decision.
Corps officials are going through the letter point by point to figure out the best way to respond, an agency official said Friday. They're also looking for the appropriate documents, said Chip Smith, an assistant for environment tribal and regulatory affairs in the Corps' Washington, D.C., office.
As the federal government interprets the Clean Water Act, wetlands, streams and washes are protected if they have significant connection to a navigable stream. A developer or a government agency wishing to build homes or roads near such a tributary or wanting to discharge into it needs a federal permit. That takes time and money and often leads to conservation requirements.
A navigability determination could hurt the proposed Rosemont Mine southeast of Tucson, by regulating discharges of mine waste into Santa Cruz tributaries.
Nationally, such decisions would have "dramatic and lasting implications" regarding federal and state authority to protect rivers against toxic chemical discharges, the congressmen's letter said.
Waxman and Oberstar are concerned the Corps is contravening the scope of the Clean Water Act, they said.
The Santa Cruz and a companion decision about the Los Angeles River represent a reversal of Clean Water Act practices over the past 30 years, in which all waters were assumed to be protected under the law unless found to be otherwise, Oberstar said in a separate statement.
"We have no answers yet. Some of these things are going to take some discussion," replied the Corps' Smith. "The letter is pretty long and complex and takes some thought."
In early July, the Corps said it decided to suspend the Santa Cruz designation while conducting a national review of its policies stemming from a 2006 U.S. Supreme Court decision limiting Clean Water Act protection of wetlands.
The congressmen also are investigating a separate Corps decision in June declaring only two of 85 miles of the Los Angeles River as navigable. Waxman chairs the House Committee on Oversight and Government Reform. Oberstar chairs the House Transportation Committee.
A group of Corps officials from Los Angeles and Washington and an Environmental Protection Agency attorney from San Francisco walked and drove parts of the Santa Cruz for a day in mid-July to help investigate whether it should be classified navigable.
Corps officials declined to describe their reactions to the river. It carries treated sewage effluent in the sections that were originally called navigable and is dry elsewhere except after storms.
EPA attorney Jessica Kao said, "I would not be surprised if people could boat on it, if you wanted to put a light boat, a canoe or kayak on it. I saw one or two feet of water in it."
But she declined to say whether she thinks the river should be declared navigable, adding, "I would leave that to experts."
● Contact reporter Tony Davis at 806-7746 or at tdavis@azstarnet.com.