EPA elbows Corps aside to protect western rivers

Santa Cruz River in southern Arizona

WASHINGTON -- In a move to protect Western rivers from pollution and development, the U.S. Environmental Protection Agency has taken jurisdiction away from the U.S. Army Corps of Engineers to determine whether two rivers are covered by the Clean Water Act, according to documents released today by Public Employees for Environmental Responsibility (PEER), where I serve as Ecologist and Southwest Director. The action by EPA effectively trumps recent steps by the Corps to declare much of Arizona's Santa Cruz and California's Los Angeles river systems to be non-navigable and thus ineligible for federal protection.

In an unusual letter sent this past Sunday, August 17, EPA Assistant Administrator Benjamin Grumbles informed his counterpart overseeing the Corps, Assistant Army Secretary John Woodley, that -

"I am designating the Los Angeles and Santa Cruz Rivers as Special Cases…and therefore EPA Headquarters will make the final determination of their jurisdictional status under the CWA [Clean Water Act]."

At the urging of the National Association of Homebuilders, the Corps had in recent weeks sent signals that it would radically narrow its standard for whether rivers that flow intermittently should be protected:

• In June 2008, the Corps declared only a small portion of the L.A. River navigable, thus signaling that the bulk of the river and all its tributaries would not be covered by the Clean Water Act; and
• In July 2008, the Corps suspended its previous decision that the Santa Cruz River in Arizona was covered by the CWA. Under the standards proposed to the Corps, fully 96% of all of the surface waters in the state of Arizona would fall outside the Clean Water Act.

"It is refreshing to see EPA show some spine on a politically charged pollution issue," stated PEER Executive Director Jeff Ruch, noting that Clean Water Act prevents the rivers from being eliminated through fill and prohibits dumping of sewage and toxic materials as will as run-off from construction sites and streets. "The reverberations from this action extend beyond these two rivers, across the West."

The EPA action does not guarantee protection for the two rivers but it is highly unlikely that EPA would have intervened if it agreed with the Corps.

Navigability is one of the thorny issues created by a 2006 U.S. Supreme Court decision (U.S. v Rapanos) that the Bush administration is using to cut back protections for wetlands and other vital waters. Congress is currently debating legislative remedies to these rollbacks. Two of the leading reform sponsors, Rep. Henry Waxman (D-CA) and James Oberstar (D-MN) have demanded the Corps explain its navigability ruling reversals. Rep. Raul Grijalva (D-AZ), Gabrielle Giffords (D-AZ) and the Pima County Board of Supervisors have all opposed the Corps moves. Sen. John McCain (R-AZ) has said nothing.

Cleaning up the Clean Water Act should be high on the agenda of the next Congress and Administration.

- adapted from PEER