From more than 1 million to almost 5 million miles of ephemeral streams nationally could be removed from federal protection and regulation by a new rule defining “Waters of the U.S.,” the Environmental Protection Agency said Wednesday.
Such a reduction in regulatory scope over ephemeral streams, which carry water only after storms, will have a major impact in Arizona. Such streams represent the vast majority of river miles in the state.
The new rule represents a major reversal of federal authority over such streams — the first of its kind since the Clean Water Act was adopted in 1972.
It will also strip federal regulation of nearly two-thirds of all wetlands nationally, EPA says. That change will have far less effect in Arizona because wetlands are rare here.
The EPA and the U.S. Army Corps of Engineers imposed the new rule to bring regulations on enforcing the Clean Water Act in line with a May U.S. Supreme Court ruling. That ruling, known as Sackett v. EPA, sharply limited the agencies’ jurisdiction over development along and pollution in certain types of rivers, streams and wetlands.
The agencies’ new definition of federally protected waters under the Clean Water Act will make it much easier to build subdivisions, shopping centers and mines, among other projects, along the ephemeral streams.
A project that could benefit most quickly is the proposed Copper World mine, slated for the Santa Rita Mountains south and southeast of Tucson. It has been a source of legal disputes over Clean Water Act authority since Hudbay Minerals Inc. began clearing and grading its private land in the Santa Ritas for the project in April 2022.
By removing federal protection, the new rule also could make it harder for agencies to prosecute persons or companies for dumping toxic materials into such washes, although how much that will affect enforcement is a question that remains unsettled.
Environmental groups alarmed
The new rule drew alarm bells from environmental groups both locally and nationally, including those fighting the Copper World project and its smaller predecessor, the proposed Rosemont Mine. They — and the EPA — have long said that these normally dry ephemeral water courses provide clear connection for waters heading into other more important rivers such as the Santa Cruz, the Gila and the Colorado.
Ephemeral and intermittent streams provide the same ecological and hydrological functions as perennial streams by moving water, nutrients and sediment throughout the watershed, the EPA has said.
“It’s kind of the disastrous reality of the Sackett decision at this point,” said Stu Gillespie, an attorney who represents tribes opposing the Copper World project, and environmental groups fighting the 28,000-home Villages at Vigneto project in Benson that they and some scientists fear would dry up the neighboring San Pedro River.
“This is a clear call that Arizona needs to step in and protect its waterways,” said Gillespie, who works for the nonprofit EarthJustice environmental law firm.
Business groups want it to go further
But while business interest groups were pleased the agencies scaled back their regulatory reach, they expressed disappointment that the new rule didn’t go farther. They have long argued that regulation of development along washes and streams, in particular, should be handled by the states, not the federal government.
They have also complained for many years that getting a federal permit to build a project along washes covered by the Clean Water Act is time-consuming and very expensive.
It took Copper World’s predecessor project, the Rosemont Mine on the Santa Ritas’ east slopes, nine years to get a Clean Water Act permit in 2019, for instance. Hudbay eventually relinquished that permit to focus on the Copper World Project, which covers lands on both the Santa Ritas’ east and west slopes.
“A key element of the Sackett decision deals with the concept of relatively permanent waterbodies. Our interpretation of that decision is federal authority is limited only to those categories of water,” said David Godlewski, president of the Southern Arizona Home Builders Association. “The new rule does not provide a definition for relatively permanent waterbodies and as a result, we are concerned there will still be uncertainty about what is and what is not regulated.”
The Pacific Legal Foundation, which represented the plaintiffs, the Sackett family, in the lawsuit that led to the high court ruling, said the new federal rule omitted some key language from the ruling. The EPA rule, for instance, didn’t include language that said “in ordinary parlance” the water bodies that would now be regulated would include “streams, oceans, rivers, and lakes.”
1.8% of Arizona streams run year-round
Usually dry washes make up about 86% of all stream miles in Arizona, says the Arizona Department of Environmental Quality. About 6.5% of the streams are intermittent, carrying water parts of the year, ADEQ has said.
Overall, the state has nearly 300,000 miles of streams. Only 1.8% are perennial, such as the Colorado River, running year-round.
Development along some of them in Arizona has been hotly contested at times, most notably for the proposed Rosemont and Copper World mining projects, along with the Villages at Vigneto, the still unbuilt subdivision planned for Benson near the San Pedro River.
In responding Wednesday to questions from the Star on the impacts of the new rule, the EPA confirmed figures reported Tuesday in the Washington Post that were based on comments from an unidentified EPA official.
Specifically, the new rule could leave 1.2 million to 4.9 million of miles of streams unprotected, EPA said.
The rule could also strip federal oversight over development and pollution of 63% of all the nation’s wetlands, the EPA said Wednesday, also confirming a figure first reported in the Post.
Wetlands are considered very important habitats for wildlife and buffers to protect urban areas and other residential areas from flooding and pollution.
But the U.S. Geological Survey estimates that less than 1% of Arizona’s total land consists of wetlands.
EPA leader “disappointed”
While the agencies are still evaluating the impacts of the Sackett ruling on the legal reach of their authority, the EPA said the ruling “will erode longstanding clean water protections.”
“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, tribes, and partners,” said EPA Administrator Michael S. Regan in announcing the new rule Tuesday. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling.
“EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and tribes protect the clean water upon which we all depend,” Regan said.
The relevant language in the new agency rule says tributaries and wetlands will only come under Clean Water Act regulation if they are “relatively permanent, standing, or continuously flowing” water bodies, connected to a traditionally navigable waterway.
“The bottom line in my view is that the Corps and EPA will not be regulating discharges to ephemeral streams or wetlands that do not have a continuous surface connection to navigable waters,” said Patrick Parenteau, a Vermont Law School environmental law professor and former EPA attorney.
Hudbay: No jurisdiction over its washes
Hudbay Minerals, which proposes to build Copper World, responded to a Star question about the new rule by pointing to comments it made earlier this year saying it didn’t believe the Army Corps has jurisdiction over washes on its site, even under the previous “waters of the U.S.” rule that gave the feds authority over some intermittent streams.
The new EPA rule reinforces its previous view, the mining company said.
The National Mining Association said the new rule “perpetuates prior government overreach, infringing on state authority, and disregarding the court’s call for clarity, creating more regulatory confusion and uncertainty when just the opposite is needed.
“Given the soaring demand for mined materials and the need for domestic production to both help meet that demand and secure the nation’s supply chains, this rule was an opportunity to advance a regulatory framework that would support the development of strong domestic supply chains; instead, it has created a new obstacle,” the association said.
Earth Justice’s Gillespie responded, “The agencies have thrown out huge portions of the rule because of the Supreme Court decision. They (mining companies and the mining association) should be pouring champagne and toasting themselves. They apparently are trying to achieve more than Sackett.”
This ruling will aggravate damage to watersheds in the Santa Ritas that already are threatened by unregulated and unlimited groundwater pumping that Hudbay will do for its Copper World project, said Rob Peters, executive director of Save the Scenic Santa Ritas, which has fought Rosemont and Copper World since 2005.
This new rule “would greenlight Hudbay’s ongoing destruction of washes in the Santa Ritas, which they are filling in and putting roads across, interfering with the natural flow of water,” Peters said. “If some arsenic gets put in the water by a mine site, it will ultimately end up in the Santa Cruz River. It’s all connected.”
Hudbay has said its analysis of sediment and water quality in the washes on its property concluded water flowing from workings of historic, abandoned mines in the Copper World area haven’t affected the Santa Cruz.
A study conducted for EarthJustice, however, found the Rosemont-area washes “both individually and in combination with similarly situated streams, have a significant nexus” with the Santa Cruz.
Get your morning recap of today's local news and read the full stories here: http://tucne.ws/morning
Proposal would ban early voting in Arizona's GOP presidential preference primary
