Tony Davis A recent landmark U.S. Supreme Court ruling is likely to take a big bite out of the Clean Water Act’s reach in Arizona and the Southwest, particularly when it comes to regulating development along most of this state’s streams, many experts say.
People are also reading… The ruling could also take the regulatory reins off many future such projects across the Southwest. The ruling represents a major victory for property rights activists who say agencies enforcing the act have overstepped bounds on their authority placed by Congress when it passed the act in 1972. But environmentalists say the ruling will open the door to major environmental damage to rivers and streams and reverse more than four decades of how the Clean Water Act has been enforced here and nationally.
But the Pacific Legal Foundation, a nonprofit, property rights group that argued the Sacketts’ case, said it’s up to the states, not the federal government, to insure that rivers and wetlands are adequately protected. Five law profs agree on AZ impactsAt first glance, the Sackett ruling appears to apply mainly to wetlands, which are rare in Arizona. The ruling dealt with an Idaho case in which a married couple was challenging an EPA decision that they needed a Clean Water Act permit to build a home because it lies on a wetland near a ditch that feeds a creek, which empties into a nearby lake.
While Alito didn’t mention the kind of streams that dominate Arizona — ephemeral streams that flow only after rains — five law professors contacted by the Star agreed it will end or severely crimp any federal regulation of development along such streams. But he said it will be different from the existing rule, which offers legal protection of both ephemeral and intermittent streams under certain circumstances. There will be “specific aspects” of the current rule that no longer will be valid, given the court ruling, he said.
The ninth justice, Anthony Kennedy, argued for a test of whether a wetland in question had a “significant nexus,” or connection, with a navigable waterway. EPA and the Army Corps of Engineers have used that definition since then to determine if a waterway is regulated under the act. Scalia wrote that “waters of the U.S. doesn’t include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”