July 2011, Issue 50: Editors’ Notes

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This editorial is from the July issue of M&A’s Arizona Water Policy Update.

Just how far does the EPA’s authority extend under the Clean Water Act? Recent events are stirring the murky waters surrounding this issue, and the stakes are high for Arizona.

The Clean Water Act is under scrutiny again, and Arizona has a significant stake in the outcome. Several years ago, the Supreme Court rulings in Solid Waste Agency of Northern Cook County and Rapanos failed to provide clear direction for determining which waters and wetlands are protected under the CWA. With no clear majority opinion in these cases, recent determinations have been made on an individual basis. In an attempt to clear up the uncertainty, the EPA and Army Corps released draft guidance in May for identifying waters protected by the CWA. These agencies claim that the guidance will reduce confusion; however, some think the agencies have gone too far and are using the guidance to expand their regulatory authorities. To allow for more time, the deadline for public comments was recently extended for 30 days, until July 31.

Congress and the Supreme Court are also taking action to define EPA’s authority under the CWA. Last month, the House Transportation and Infrastructure Committee passed a bill that would limit the EPA’s authority to overrule state permitting decisions and water quality standards. Sponsors claim it is a states’ rights issue, but EPA says it undermines the basic EPA/Army Corps/state partnerships under the CWA and threatens water quality. The timing of the bill may not be coincidental; it was introduced closely on the heels of the guidance document release. Then last week, the Supreme Court announced that it would hear a case challenging EPA authority under the CWA. The ruling on this case will further define EPA’s jurisdiction.

CWA regulations affect a broad range of stakeholders but, so far, few agree on the solution. Western states have long felt that their unique water issues have been poorly represented at the national level, and the new guidance may do little to address those concerns. Ben Grumbles, former ADEQ Director and now President of the Clean Water America Alliance, suggests that states need to help broker a policy compromise on waters of the U.S. rather than letting political agendas frame the debate. All stakeholders will benefit from clarification of the issues; however a “one-size-fits-all” approach may not be best for Arizona and the western states.

Juliet M. McKenna, MS, PGTaylor D. Shipman, MS | Mark H. Myers, MBA