Washington, DC — In a move to protect Western rivers, 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). The action by EPA effectively trumps recent steps by the Corps to severely diminish Clean Water Act federal safeguards in the Los Angeles and Santa Cruz river systems.
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 to be a Traditional Navigable Waterbody (TNW), thus signaling that the bulk of the river and all its tributaries might not be covered by the Clean Water Act; and
- In July 2008, the Corps suspended its previous decision to designate parts of the Santa Cruz River in Arizona as a TNW. Under the standards proposed to the Corps, fully 96% of all of the surface waters in the state of Arizona would very likely lose Clean Water Act protections that have been in place for the past thirty years.
“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.”
The EPA action removes the Corps from making the determination as to what waters in these river systems will retain their long standing Clean Water Act protections. EPA now will be the agency that defines which waters keep and loose CWA protections. Until EPA makes their final determination there is no guarantee how much of these two watersheds will retain CWA protections, 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 return Clean Water Act protections to what had been historical protected under the Act. In an August 7 letter, two of the leading reform sponsors, Rep. Henry Waxman (D-CA) and James Oberstar (D-MN) demanded the Corps explain their threatened rollbacks, writing that the agency had seemingly acted in an “ad hoc manner, seemingly subject to complete reversal of suspension without any clear and objective standards” that may be “in contravention with the law” and which “undermines federal and state efforts to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’”
“Cleaning up the Clean Water Act is high on the agenda for Congress,” Ruch added.