April 2009

U.S. Water News Online

TUCSON, Ariz. — Homebuilder groups have filed suit against the federal government for its decision to extend Clean Water Act protections to parts of the Santa Cruz River north and south of Tucson.

The suit filed in U.S. District Court in Washington, D.C. seeks an injunction against the Environmental Protection Agency and the U.S. Army Corps of Engineers. It was filed by the Southern Arizona Home Builders Association, the Home Builders Association of Central Arizona and the National Association of Home Builders.

The EPA gave the river the highest level of protection in December by declaring it a “traditional navigable waterway.” That generally bars manmade activities that would disturb the riverbed or its banks or add to polluted runoff. It also regulates discharges of pollutants into the streambed.

The river runs intermittently in the area and is mainly fed by water from sewage treatment plants.

Homebuilders vigorously fought the designation. In the lawsuit they filed on March 23, they said the Santa Cruz simply does not meet the standards for a traditional navigable waterway.

“It can't be an 'interstate highway of commerce,' which is the definition of a traditional navigable water,” said NAHB Chairman Joe Robson, a builder and developer based in Oklahoma, in a written statement. “The facts do not support the agencies' decision.”

Robson also said there was not enough opportunity for public input during the decision-making process.

The EPA based its designation on the width and depth of recorded flows in the Santa Cruz, the presence of activities like canoeing and birding along the river and the potential for more water in the river if the Corps moves ahead with restoration projects.

The decision restored protections that had applied to the river until a 2006 Supreme Court decision created doubt about how to treat seasonal streams common in the western United States.

Environmental activists said they were disappointed but not surprised by the lawsuit.

“The home builders have a long history of trying to avoid any Clean Water Act regulation, so it's not surprising that they would do this,” said Sandy Bahr of the Sierra Club's Grand Canyon Chapter. “As evidenced by the condition of our rivers in Arizona, it's never been easy to protect them. And a big reason for that is the efforts of the home builders to avoid regulation.”

The December EPA decision covers parts of the river from Tubac in Santa Cruz County to Green Valley in Pima County and from Tucson north to the Pinal County line.

It ended months of uncertainty that began when the Corps first granted the designation, then withdrew it. The EPA announced in August that it would take on the Santa Cruz River as a “special case” and make the determination itself.

The Santa Cruz River starts in the San Rafael Valley, near Patagonia, and runs south into Mexico before doubling back into the U.S. near Nogales and traveling north through Tucson to where it peters out near Casa Grande.

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