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Arizona’s Waterways Not Navigable, So Pollute On!

I know that I'm always talking about how this or that gives me heartburn or a headache, and you're probably getting sick of hearing about my ailments.  You'll be glad to hear then, that today's topic isn't just focused on my health. 

It could literally make us all sick.

The New York Times reported this past Sunday that a couple of Supreme Court cases have set a precedent for exclusion of some waterways from protection under the Clean Water Act.  Here's the gist: the 1972 Clean Water Act regulates waste discharge into "navigable" waterways.  But the Supreme Court ruled, in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers in 2001 and Rapanos v. United States in 2006, that the term "navigable" excludes isolated water, certain kinds of small streams and wetlands, and waterways that sometimes run dry.  If they're not navigable, they may not be protected under the Clean Water Act.

Here's why you should care.

At least 79% of Arizona's waterways are not considered navigable.  More than 3.2 million Arizonans get their drinking water from public drinking water systems that rely at least in part on "intermittent, ephemeral, or headwater streams."  According to the Arizona Department of Environmental Quality, which undertook a study in 2007 with the U.S. Geological Survey, found that approximately 96% of Arizona's stream miles are intermittent or ephemeral - in other words, they're not "navigable" so they may not be protected by the Clean Water Act.

That's true for most of the country's Western states, which rely heavily on small streams and intermittent water sources for drinking water (check out the map below).


Legend: This map highlights regional patterns of dependence on intermittent, ephemeral, and headwater streams for surface drinking water. This analysis compared the stream length of intermittent, ephemeral, and headwater streams to total stream length within all mapped Source Protection Areas (SPAs) for each county. A SPA is an area upstream from a drinking water source or intake that contributes surface water flow to the drinking water intake during a 24-hour period. This is based on data that generally do not include streams less than one mile in length. Intermittent streams are streams containing water for only part of the year. Ephemeral streams flow in response to precipitation events. First-order streams have been used to represent headwater streams.

Source: EPA

In a written testimony to Congress in 2008, Joan Card, the former Water Quality Division director at the Arizona Department of Environmental Quality, cogently explained the impact of the Supreme Court precedent on Arizona.  It's an incredibly worthwhile read (only 4 pages) but here are the salient points:

  • The Supreme Court's decisions "could minimize, if not devastate surface water quality protections that have been implemented in Arizona at least since the 1972 Amendments."
  • "Our specific concern for Arizona . . . is the potential elimination of Clean Water Act protections, particularly Section 402 point source permitting protections, for ephemeral and intermittent, or non-perennial, waters. Arizona's landscape includes a vast network of these non-perennial streams. In cooperation with the United States Geological Survey, we recently have quantified this network and determined that approximately 96% of the stream miles in Arizona are non-perennial."
  • "Arizona's largest water body is the Gila River. It flows intermittently in wetter years, but in times of long-term drought, such as we presently are experiencing, this massive water body is largely dry and any flow is highly disconnected. The Gila's main tributaries include the Salt, Santa Cruz, and Hassayampa Rivers, which are very large and mainly ephemeral streams."
  • "Arizona's largest and fastest growing counties, Maricopa, Pima and Pinal Counties, are located in the heart of the mostly ephemeral Gila River drainage. Subdivisions require sewage treatment facilities and many of these facilities construct outfalls and discharge to ephemeral arroyos in these neighborhoods. These facilities currently hold Clean Water Act point source permits for discharges of wastewater that are protective of aquatic life, agricultural irrigation and livestock watering, and body contact uses. Without Clean Water Act protections, the Arizona Department of Environmental Quality will be unable to require permits that are protective of these uses. Arizona law prohibits the Arizona Department of Environmental Quality from being more stringent than the federal Clean Water Act. We will be unable to assure the public and water users that these discharges of wastewater in the desert are not harmful to the environment."
  • "Since 1980 Arizona has included express protections for ephemeral water bodies in Clean Water Act standards promulgated in rule under Arizona law and approved by EPA. This has been necessary to protect the large ephemeral streams, like the Salt and Santa Cruz Rivers, receiving discharges from large POTWs, but also is necessary to protect ephemeral arroyos from pollution caused by smaller municipal dischargers and industrial dischargers, such as uranium and hard rock mines."

Since the Supreme Court's decisions, pollution rates have risen, while the EPA's enforcement of the Clean Water Act has declined (see the data here).  According to the New York Times, "Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to Environmental Protection Agency regulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years."

In a 2008 policy report the Goldwater Institute argued that regulating intermittent and small streams places an undue burden on property owners.  "The CWA [Clean Water Act] . . . reaches deep into the Grand Canyon State, regulating all sorts of dry, dusty land should water drip out of it, however sparsely or infrequently.  Attempting to make beneficial use of land becomes wrought with delay and financial burden."

"The average applicant hoping to develop his or her own wetlands will spend 788 days and $271,596 working with federal authorities to do so. In pursuing environmental purity, the principle that one may use his property as he best sees fit has vanished," says the report. 

Yet the Clean Water Act isn't primarily about the "pursuit of environmental purity," it's about protecting ourselves from toxic chemicals that, before the CWA's passage, too often showed up in our drinking water.  (And, talk about an undue financial burden if we allow the discharge of dangerous pollutants into our waterways and then try to clean them out at drinking water treatment plants.)

I'm not proposing that we place additional restrictions on the smallest of waterways (which, remember, provide drinking water for 3.2 million Arizonans, and 117 million Americans nationwide) I'm simply saying that Congress should clarify the Clean Water Act so that it's not weakened by recent Supreme Court precedent - they should put things back to the way they were, in other words.

What do you think?  I really want this to be a discussion, not an oration, so please share your thoughts in the Add New Comment section below.  (You have to create a login id and password with Disqus, but it really only takes 30 seconds.)

Written on Thursday, 04 March 2010 00:00 by Gary Yaquinto

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