The Rillito River, running full near North Craycroft Road, would not be protected under a proposal from Gov. Doug Ducey giving the state more power.

Mike Christy / Arizona Daily Star 2014

Gov. Doug Ducey has asked the EPA to revise federal rules to give states the power to decide which streams will be protected as “Waters of the U.S.”

That power can have huge impacts over how strictly development along those streams is regulated, such as subdivisions and mines whose construction requires dredging and filling of water bodies.

In a letter to Environmental Protection Agency Administrator Scott Pruitt, Ducey also argues that ephemeral streams and washes — those that carry water only after storms — shouldn’t be protected under that rule. Those are the overwhelming majority of watercourses in Arizona and Pima County.

Only year-round and intermittent streams, which carry water part of the year, should be protected, Ducey wrote.

Ducey’s definition would protect streams in the Tucson area such as Sabino Creek and Cienega Creek, which have perennial and intermittent stretches, and Davidson Canyon, which is intermittent.

Left out would be the ephemeral Rillito River, Pantano Wash and a host of washes near the proposed Rosemont Mine site southeast of Tucson, including Barrel Canyon and McCleary Canyon.

Under current federal jurisdiction, those ephemeral streams all require developers to get Clean Water Act permits before dredging or filling. Developers say the permits are costly and time-consuming to obtain. Environmentalists counter they’re essential for preventing pollution and preserving key wildlife habitat and endangered species.

If Ducey’s request is granted, the potential long-term impact on the Santa Cruz River is unclear. The Santa Cruz, which has both year-round and ephemeral stretches, is formally designated as protected, but developers are challenging its designation in court.

Trump administration’s plan

“Waters of the U.S.” are the rivers, streams, washes, lakes and wetlands where residential, commercial and industrial development are regulated under the Clean Water Act.

The governor’s view on the hotly disputed topic is largely in line with that of many business groups, homebuilders, property-rights activists, the EPA’s Pruitt and the Trump administration.

Pruitt and President Trump are seeking to limit which water bodies are covered. Pruitt recently proposed to repeal the Obama administration’s 2015 rule that does consider streams that are dry except after storms as protected Waters of the U.S. under certain circumstances.

Their view is at odds with those of many environmentalists and academic researchers — that the Clean Water Act applies to ephemeral streams as well as those running year-round.

Ducey’s June 16 letter was one of many that governors and Indian tribes around the country sent to EPA’s Pruitt, in response to his request for their input on how to rewrite the Waters of the U.S. rule. That’s what Pruitt has said he’ll do after he finishes his current effort to repeal the 2015 rule.

The governor’s letter hasn’t been formally released to the public by the EPA; the Arizona Daily Star obtained a copy from other sources. Environmentalists in Washington, D.C., asked the EPA last month to release all the governors’ and tribal letters. The agency refused. An EPA spokesman said the agency will provide summaries of all the letters at a later date, as it continues considering the proposed rule.

For many years, developers, mining companies and other private interests wishing to build near many or most streams have had to get Clean Water Act permits allowing them to dredge and fill dirt lying within the washes.

The permits often require extensive mitigation measures, such as those costing $48 million that the proposed Rosemont Mine has put forth for its plans to extract over 200 million pounds of copper annually from the Santa Rita Mountains. Rosemont and the proposed 28,000-home Villages at Vigneto development in Benson have been tied up for years in part because of unresolved Clean Water Act issues.

Now, Ducey’s letter raises an equally complicated issue about who makes these key decisions.

“The revised rule should ... clearly identify that states have authority to determine waters regulated under the (act),” except those on tribal lands and those crossing state lines or international boundaries, Ducey wrote.

State already plays
an informal role

In response to questions from the Star, Ducey’s press secretary, Patrick Ptak, said Friday that the governor is simply asking the EPA to grant states formal authority that Arizona is already informally exercising.

Typically, the power to designate Waters of the U.S. has gone to the U.S. Army Corps of Engineers, with the EPA having final say in determining which rivers are navigable. Navigable streams are always protected under the law and whether other streams, wetlands and waters are protected often depends on their relationship to navigable waters.

But Ptak said the agencies exercise that authority only when deciding on permits for individual projects. “That leaves it for states to interpret whether or not the Clean Water Act applies for the vast majority of waters within their boundaries,” Ptak said.

As examples, he said the state makes decisions about what water bodies are protected when it issues a Clean Water Act permit to discharge pollutants into them or decides what’s the maximum daily load of pollution that goes into a water body.

Differing legal views

Vermont Law School professor Patrick Parenteau, a conservationist critic of Pruitt’s efforts to rewrite the rule, said last week that he doesn’t think Arizona will get the sole right to designate Waters of the U.S.

While the EPA can give states the power to issue Clean Water Act permits to developers, sewage plant operators and industries, Parenteau said he knows of no provision allowing states to take over the power to say which waters will be covered by such permits.

“You can’t have 50 states deciding for themselves what are Waters of the United States,” said Parenteau.

Responding, Ptak said the states have the authority to determine protected waters when they issue discharge permits for various industries and sewage plants to discharge pollutants and other substances into rivers.

If only the waters designated by the Army Corps were legally regulated, “only a tiny fraction of waters would be protected,” he said.

Reed Hopper of the Pacific Legal Foundation and research associate Daren Bakst of the Heritage Foundation, two politically conservative groups that advocate for property rights, said they believe states either do or should have more power to designate protected waters.

The Supreme Court has said that regulating local lands and waters is a traditional state power, Hopper said.

He said Ducey is not really suggesting that the state needs to have the EPA’s OK — “He’s saying it’s the states that have the power and the federal government is intruding on that in violation of the 10th Amendment” to the U.S. Constitution, which says powers not expressly designated to the federal government are reserved for the states.

State Program
would be needed

Even if Arizona had the power to designate the protected waters, that’s not going to help much, said Colorado environmentalist Melinda Kassen of the Theodore Roosevelt Conservation Partnership.

Arizona currently has no program to regulate the dredging and filling of protected streams, she said. It only has a program to permit industrial discharges into streams under a different provision of the Clean Water Act.

“The question is, are you going to enforce Waters of the U.S. in all its glory and how are you going to do that since you don’t have a program?” said Kassen.

Michigan is one of two states that have taken over permitting of dredging and filling of streams from the federal government. It pays about $4 million a year to do that, in a state with about 3 million more people than Arizona.

Montana, whose Legislature declined this year to seek takeover of the federal permitting program, would have had to pay $1 million to run it in a state with less than a million people.

As part of Michigan’s program, it chooses which streams it protects. But it uses definitions that are equivalent to federal definitions, said Kim Fish, an assistant director for the Michigan Department of Environmental Protection.

“The requirement is that the state laws have to be at least as stringent as the federal laws,” Fish said.

Aquifer protection
is an issue

Environmentalist Christina McVie of the Tucson Audubon Society said that without federal Clean Water Act protection, dumping into ephemeral stretches of the Santa Cruz River would be unregulated, leaving no protection for the underlying aquifer.

Having states control the selection of protected waters creates a slippery slope, leaving an “unequal playing ground” of regulation from state to state, she said. “If we could do air quality state by state, we’d be in a terrible state with that.”

In response, Ducey spokesman Ptak said discharges to ephemeral streams that have the potential to impact groundwater are currently, and will continue to be, regulated by the state’s existing Aquifer Protection Program.

State law also gives Arizona the authority to adopt, by rule, water-quality standards for waters of the state beyond those designated by the feds, he said.

Contact reporter Tony Davis at tdavis@tucson.com or 806-7746. On Twitter@tonydavis987