The proposed Rosemont Mine and real estate projects across Southern Arizona would be big winners if President Trump’s proposed change to the “Waters of the U.S.” rule goes through.
Changing the rule as Trump has proposed would remove costly, time-consuming yet environmentally protective requirements for landowners to get federal permits for building projects near many Southern Arizona washes and streams. Most affected would be ephemeral streams and washes, which carry water only after big rains.
If that happens, Rosemont, for instance, could eventually be built even if it doesn’t get its Clean Water Act permit from the U.S. Army Corps of Engineers, one law professor said.
The existing requirements won’t go away overnight. Trump has issued an executive order that the “Waters of the U.S.” rule be reviewed and revised or rescinded. To change it, the administration must formally propose a new rule, hold hearings and take public comment, and then adopt it, which could take at least a year.
Court challenges would follow, just as the current “Waters of the U.S.” rule is being challenged. It’s now tied up in court on lawsuits from 31 states, including Arizona.
Here is a guide to the controversy:
The new rule
President Trump ordered the Environmental Protection Agency and the Army Corps to consider replacing the “Waters of the U.S.” rule with one consistent to the late Supreme Court Justice Anton Scalia’s opinion in a crucial 2006 wetlands case known as Rapanos vs. U.S. In it, Scalia and three other conservative justices said ephemeral streams and washes don’t deserve Clean Water Act protection. Four liberal justices said they do.
The ninth, Anthony Kennedy, argued that such washes deserve protection if they have a significant connection to navigable waters. Today, two effluent-bearing stretches of the otherwise dry Santa Cruz River are considered navigable. The EPA and the Army Corps use Kennedy’s middle-ground standard to decide if projects near washes need Clean Water Act permits.
If the agencies follow Trump’s direction, many or most projects next to washes won’t require permits. This would have a major impact in Southern Arizona because by some accounts, 90 percent or more of all Arizona streams are ephemeral.
For Rosemont Mine, the Corps’ San Francisco regional office is weighing a decision on the $1.5 billion project in the Santa Rita Mountains. The Corps’ Los Angeles District office last summer recommended denial of a Clean Water Act permit. Officials of the Corps and Hudbay Minerals Inc., the company proposing to build the mine, were scheduled to meet and discuss the permit on Friday.
While Trump’s proposal is considered, the mine and all other applicable projects must meet existing Clean Water Act rules. But if a new rule following Trump’s vision takes effect, even if the mine’s current application is denied, the mining company wouldn’t need a Clean Water Act permit and could build Rosemont if it met all other legal requirements, said Royal Gardner, an environmental law professor at Stetson University in Florida. Gardner worked as a legal adviser on Army Corps issues during the George H.W. Bush and Bill Clinton administrations.
David Godlewski, president of the Southern Arizona Home Builders Association, welcomes Trump’s plan. “I do think that this is a positive sign that the current administration is looking to reduce burdensome regulations. The ‘Waters of the U.S.’ rule is particularly troubling to homebuilders and land developers in Southern Arizona,” he said.
“We saw it as an overextension of federal authority for regulating waterways; we thought the definition was going to extend federal jurisdiction to every little wash throughout Southern Arizona,” Godlewski said.
He noted that Trump’s executive order seeking a rollback of the rule said it’s in the national interest to ensure that navigable waters are kept pollution-free “while at the same time promoting economic growth, minimizing regulatory uncertainty and showing due regard for the roles of the Congress and the states under the Constitution.”
Hudbay officials didn’t respond to the Star’s request for comment on Trump’s action.
During the Rapanos case in the 2000s, the nonprofit, libertarian Pacific Legal Foundation submitted information to the high court, showing that getting a permit for a housing subdivision typically costs nearly $300,000 and takes two years. In 2015, EPA said permitting a typical subdivision costs the developer $62,000, plus another $16,800 per acre.
If a court allowed the “Waters of the U.S.” rule to take effect, the EPA has said it would cost property owners across the nation who want to develop their lands — and regulators including the federal government and the states — a range of $158 million to $306 million a year. The EPA said it would also bring annual benefits of $338 million to $349 million due to its environmental protections that would improve water quality and preserve wetlands.
While the process of getting the Clean Water Act permits costs money, the bigger cost is for mitigation, said Melinda Kassen, a longtime Boulder, Colorado, environmental activist and expert on such water issues who now works in private consulting. Those costs are often to buy pristine land elsewhere to compensate for environmental damage caused by a permitted project.
The EPA estimates it costs $41,572 to $111,985 per acre to mitigate for wetlands damaged by construction projects granted these permits, and $95 to $1,000 per linear foot of stream mitigations.
For Rosemont mitigation, Hudbay has agreed to spend around $48 million to buy 4,800 acres — which lower-level Corps officials say is inadequate.
If federal regulation of ephemeral streams goes away, so would the mitigation requirements.
“You can build a road and bridge through an ephemeral stream, dig a ditch through an ephemeral stream and put mining waste into an ephemeral stream, and none of it would be regulated,” Kassen said. “The Clean Water Act says you are supposed to protect these streams and avoid or mitigate adverse effects on these streams.”
Christina McVie, the Tucson Audubon Society’s conservation chair, is concerned that without Clean Water Act protection, builders will again be able to put homes and shopping centers right up against bare washes, risking severe damage during future floods.
While Pima County strictly limits floodplain development, that’s not the case in all Arizona counties, McVie said.
McVie and other environmentalists also fear that removing Clean Water Act protection will make washes easier marks for polluters. Some law professors who specialize in water issues agreed.
Many states derive their ability to protect streams from the Clean Water Act, according to Gardner, Patrick Parenteau of Vermont Law School, William Buzbee of Georgetown University and Noah Wolf of Wayne State University. But many states, including Arizona, have laws forbidding rules stricter than federal rules, Buzbee and Parenteau said.
One reason the act was passed back in 1972 was that many states were failing to protect rivers and streams — “that’s why we had pollution havens, rivers catching on fire, massive fish kills, oil platform blowouts,” Parenteau said.
Such arguments are “nonsense,” countered Reed Hopper, a Pacific Law Foundation attorney.
“States can regulate discharges without federal interference. All the states have laws prohibiting toxic discharges to waters within the states,” Hopper said.
The Clean Water Act says that it’s Congress’ policy “to recognize, preserve and protect the primary responsibilities and rights of states to prevent, reduce and eliminate pollution,” Hopper noted.
Asked about this issue, Arizona Department of Environmental Quality officials said that while the federal process to review these rules continues, “our water quality programs continue to protect Arizona’s surface waters in full force through both regulatory means as well as our important voluntary projects working with our communities. ...
“We are confident this process will maintain ADEQ’s ongoing ability to protect and serve the unique needs of Arizona’s surface waters,” read the written statement from the department, which declined further comment.
Parenteau and Buzbee are dubious that a new rule following Scalia’s opinion could survive a court challenge because his opinion got only four votes from justices in 2006.
“That portion of the Trump order is really questionable — taking the losing side and asking an agency to consider making it federal law,” Buzbee said.
But Hopper, law professors Wolf and Jonathan Adler of Case Western University, and longtime private environmental lawyer Thaddeus Lightfoot said there could be ways the Scalia view could get five votes.
In 2006, five justices, including Kennedy, agreed that federal agencies’ interpretation of the Clean Water Act was unreasonable, “not that the language of the Clean Water Act is clear and unambiguous,” the libertarian-leaning Adler said.
“The Kennedy opinion represents a ceiling for how strict the interpretation can be, not a floor,” he said.
Lightfoot and other legal experts said that under existing Supreme Court rules and precedents, if agencies draw up a new rule, it would be entitled to a certain amount of deference by the courts if it wasn’t done arbitrarily.
There’s no way Kennedy would accept Scalia’s view now because “if Kennedy flip-flopped ... he would look like a fool,” countered Parenteau.