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The controversy over the designation of the Santa Cruz River as a navigable river continues with the decision of state and national home builders groups to sue the federal government for granting the designation.
The Southern Arizona Home Builders Association, the Home Builders Association of Central Arizona and the National Association of Home Builders filed a lawsuit March 23 in U.S. District Court in Washington, D.C., seeking an injunction against the Environmental Protection Agency and the U.S. Army Corps of Engineers.
This is the latest development in an issue arising when the U.S. Army Corps of Engineers reconsidered its May 2008 decision classifying two segments of the Santa Cruz River as navigable pending further review. This raised statewide and even national concern that the Corps’ action might portend a change in its regulatory approach to the Clean Water Act.
Defining navigable waters became problematic after a 2006 Supreme Court ruling muddied the concept, a decision that federal officials have been laboring ever since to incorporate into their rulemaking. The Corps’ decision to review its initial Santa Cruz designation reflected this uncertain state of affairs.
In face of the controversy, EPA stepped in and announced in August that it would consider the Santa Cruz River a “special case” and decide the designation itself. A Dec. 3 letter to the Corps from the Benjamin Grumbles, the then EPA assistant administrator for water, stated that the river segments should be considered “traditional navigable water” as originally posted on the Corps web site.
The designation is important — and controversial — because of the extensive environmental protection it affords to rivers under section 404 of the Clean Water Act.
In making its decision EPA considered the width and depth of recorded flows, whether such recreational activities as canoeing and birding could occur and the possibility of increased flows from future restoration projects.
NAHB Chairman Joe Robson related in a written statement that, “It can’t be an ‘interstate highway of commerce,’ which is the definition of a traditional navigable water.” He also faulted what he said was the lack of public input into the decision-making process.