All of Arizona’s waterbodies, other than the Colorado and Santa Cruz Rivers and a stretch of the Gila River, will lose their federal protection under the Clean Water Act (CWA) on June 22, 2020. How could this happen? It turns out that only bodies of water meeting the criteria of “Waters of the United States” (WOTUS) are entitled to federal protection under the CWA, and the definition of WOTUS has just been significantly narrowed, excluding almost all of Arizona’s waters.
Here is the relevant history. The definition of which bodies of water were protected under the CWA was muddled, making enforcement of the act difficult and inconsistent. The Obama Administration, in an effort to clarify which U.S. waterbodies would be protected under the CWA, enacted the science-based “Clean Water Rule,” which federally protected more bodies of water from pollution than previously protected. Industries like oil and gas, mining, development, and farming complained because they would now have to protect (rather than be legally permitted to pollute) waterbodies on or abutting their properties, which was costing them time and money. In response to intensive lobbying, the Trump Administration repealed the Clean Water Rule in 2019 and will replace it in June, 2020 with the “Navigable Waters Protection Rule.” The new rule federally protects only “traditional navigable waters and the core tributary systems that provide perennial or intermittent flow into them.” Only 10-15 per cent of the waterbodies in Arizona meet this standard.
The Trump Administration’s new rule will eliminate federal protection for ephemeral streams—streams that run only during and after it rains—and wetlands without a surface connection to traditional navigable water. This definition excludes almost 20% of stream and river miles and over 50% of wetlands in the United States! Environmentalists have dubbed the new “Navigable Waters Protection Rule” the “Dirty Water Rule,” because it allows these smaller waterbodies to be polluted, or even buried. If ephemeral streams that feed into the headwaters of rivers aren’t protected, pollution will surely increase downstream, exposing millions of Americans to polluted water.
So what does this rule change mean for the State of Arizona and the Sonoran Desert? Between 85-95% of all the waters in Arizona now regulated under the CWA—ephemeral streams, lakes, spring-fed ponds, arroyos, playas—will be excluded from federal protection on June 22. It will be legal to dump pollutants into most of Arizona’s waterways and to fill ephemeral streams with mine waste, construction materials, and excavated earth.
A few examples of Arizona waterways losing their federal protections are Quitobaquito Springs in the Organ Pipe Cactus National Monument, the San Pedro River, Cienaga Creek near Tucson, the Verde River, Patagonia Lake, Sonoita Creek, the Salt River, and Sabino Creek in the Catalina Mountains. With so little fresh water in the desert, we can’t afford to lose any of it.
Who benefits from the exclusion of Arizona waterbodies from federal protection? The winners are extraction industries like mining, and developers and farmers, for whom protecting Arizona’s waterbodies is costly. The National Mining Association has spent 3.5 million dollars lobbying for these changes since 2017. The losers are all of us, the Sonoran Desert, its surrounding human communities, and its wildlife.
A rule that excludes most of Arizona’s waters from federal protection is bad news for Arizona’s waters. We can show support for the environmental groups suing the Trump Administration by taking our own independent action, as individuals. Let us urge/pester our state lawmakers to pass laws that will regulate the waterbodies in Arizona no longer protected by the Clean Water Act. Please call/write to your state legislators today and demand that Arizona’s waters be protected. And then repeat, until we have evidence that our concerns are being addressed.