A Trump administration rule that halted federal regulation of development along numerous Southwestern streams was tossed out by a federal judge in Tucson.
U.S. District Judge Rosemary Marquez’s ruling on Monday, which applies nationally, found the Trump rule contained “fundamental, substantive flaws that cannot be cured.” Allowing it to stand would risk serious environmental harm, Marquez said.
The ruling means the federal government will once again have more controls over development under the U.S. Clean Water Act along washes and streams across this region and the nation.
If the ruling survives appeals, developers of land along these streams once again have to get federal permits to discharge dredge and fill material into streams that were unregulated under the Trump rule. Companies wishing to discharge various pollutants into such streams also will now have to get federal permits.
Rosemont Mine implications
Locally, the ruling also brings legal uncertainty to a March 2021 U.S Army Corps of Engineers decision that disavowed federal authority over normally dry washes on the site of Hudbay Minerals Inc.’s proposed Rosemont Mine in the Santa Rita Mountains southeast of Tucson.
Exactly what kinds of controls will be put in place because of this ruling isn’t clear. But various experts told the Star that most likely, the agencies will restore permitting requirements that had been in effect from the 1980s until the Trump rule took effect in 2020.
The Environmental Protection Agency and the Corps, which jointly enforce the Clean Water Act, didn’t respond Tuesday to questions as to whether they will appeal or how they will carry out the ruling if they don’t appeal.
Attorneys for seven Arizona-based business interest groups that had intervened in the case to oppose having the Trump rule overturned also didn’t respond to questions about a possible appeal.
Stu Gillespie, an attorney for the six tribes that won Monday’s ruling, said he believes the Corps will ultimately have to reverse its Rosemont decision.
First, he said, the judge specifically disagreed with the Trump rule’s elimination of protections for the washes running on the mine site that only carry water after storms, he said. Plus, EPA has found that the Corps misapplied the Trump rule to also avoid taking authority over some streams running on the site part of the year, he said.
Hudbay noted in a statement, however, that the Corps’ decisions on its jurisdiction are valid for five years from the date they’re issued. The agency’s longstanding practice is to honor decisions issued under a prior rule, even after a new rule is finalized, Hudbay said.
“Hudbay strategically invests in stable political jurisdictions with predictable regulatory environments,” the statement from the Toronto-based company said.
Even without Army Corps’ jurisdiction, however, Hudbay’s efforts to build the $2.1 billion Rosemont project have been stymied by another unfavorable court ruling made in 2019 by a different federal judge based in Tucson.
O’odham chairman cites “sacred waters”
Tohono O’odham Nation Chairman Ned Norris Jr. said Marquez’s ruling “rightfully vacates a grievous error.”
“The sacred waters that were put at risk by the Trump administration are essential to our cultural and religious lives as indigenous people,” Norris said in a written statement. “This includes springs in Southern Arizona sacred to the O’odham that are threatened by a foreign mining company which used Trump’s dirty water rule to try to advance its destructive project. The Nation will continue working to ensure that these waters receive the protection that is due under the law.”
Other tribes filing suit in this case were the Pascua-Yaqui Tribe in Southern Arizona, the Quinault Indian Nation, the Fond du Lac Band of Lake Superior Chippewa, the Menominee Indian Tribe of Wisconsin, and the Bad River Band of Lake Superior Chippewa.
Patrick Parenteau, a Vermont Law School professor with expertise on the Clean Water Act, said the Corps may not be able to easily reverse its March 2021 Rosemont decision. That’s due to a “safe harbor” policy the agency has had since 2005, saying decisions on its authority over individual streams are good for five years.
Such decisions can be reversed only if new information warrants an earlier revision or if a Corps district engineer decides that rapidly changing conditions in a specific area justify taking a second look, the policy says.
Tribal attorney Gillespie said the term safe harbor means a company won’t be prosecuted for doing something that was permitted when it happened.
“It’s a safe harbor for what you did in the past, not a license to violate the rules in the future,’ Gillespie said.
But Parenteau, seeing valid arguments on both sides, predicted it will take additional litigation to resolve this question.
Trump cited government overreach
The Trump administration had approved the rule Marquez just threw out — the Navigable Waters Protection Rule — to replace a 2015 Obama administration rule that had toughened federal regulation of stream-side development under the Clean Water Act.
Trump and his supporters including developers and farmers had argued that the Obama rule represented severe government overreach. That rule did allow regulation of development along ephemeral streams, which carry water only after storms, in accord with a 2006 Supreme Court ruling that such streams could be protected under certain circumstances.
The Trump-era rule halted any federal control over development along ephemeral washes. Developers in such areas no longer had to obtain a federal permit to discharge dredge and fill material into the washes, as they had done for decades.
The ruling comes as EPA and the Corps were already working to revise the Trump rule on orders from the Biden White House.
During the course of the latest lawsuit, EPA and the Corps had agreed to have the 2020 Trump rule sent back to them for revision, but had opposed throwing out the rule. That would avoid potentially unnecessary litigation over parts of the current rule as a new rule is drafted, the agencies said. It also would conserve limited resources “and would best serve the interest of judicial economy,” the agencies said.
More than 1,500 streams in Ariz., NM affected
But Marquez noted the two agencies already identified a substantial reduction in the number of streams and washes covered under the Trump rule compared to earlier rules. The agencies found that the rule’s effects were particularly strong in arid states — which contains lots of ephemeral streams — the judge said.
In New Mexico and Arizona, the Corps found it had no authority to regulate development along nearly every one of more than 1,500 streams that it assessed under the Trump rule, Marquez noted. The agencies’ pullback in their Clean Water Act oversight “is resulting in significant, actual environmental harms,” Marquez quoted federal officials as saying.
Nationally, from June 22, 2020 to April 15, 2021, the Corps concluded that about 76% of 40,211 various water features that it reviewed were no longer eligible for federal regulation under the Clean Water Act, Marquez noted.
EPA and the Corps have identified 333 projects nationwide that would have required federal permitting under the Clean Water Act prior to the Trump rule, but no longer do, the judge said.
Recent monsoon rainfall has revived a natural spring on a residential street near Starr Pass.
