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Ranchers, environmentalists on collision course in defining ‘waterway’

A beaver dam on the San Pedro River Southeastern Arizona. The river flows north out of Sonora, Mexico. A recent change in federal rules will require Arizona to define what is a waterway. PHOTO BY HOLLY RICHTER/NATURE CONSERVANCY

A beaver dam on the San Pedro River Southeastern Arizona. The river flows north out of Sonora, Mexico. A recent change in federal rules will require Arizona to define what is a waterway. PHOTO BY HOLLY RICHTER/NATURE CONSERVANCY

Tricia Gerrodette worries what will happen to southern Arizona’s San Pedro River if business booms too quickly and too close.

The Sierra Vista resident has given much of her life to the river since 1995. She’s been involved in court cases, spoken at government meetings and been a vocal advocate to protect the river and the ecosystem and communities that depend on it from developments she calls dangerous. Those challenges have ebbed and flowed, but never in her more than two decades of advocacy has she felt more uncertain than now, she said.

Most of Arizona’s seasonal streams, an arterial system of dry riverbeds that fill from rains and feed rural rivers that people rely on for water, will soon be unregulated for clean water standards for three years.

That’s how long it could take for the Arizona Department of Environmental Quality to decide what is and is not a body of water, a task put upon the state by a recent federal rollback in regulation.

The Environmental Protection Agency announced on January 23 a revision of those definitions and rules, known as “Waters of the United States,” which removes about 95% of stream reaches and 99% of lakes under the Clean Water Act.

Essentially, the government is rolling back protections for streams and wetlands and adopting a new, but similar to a previous looser rule that would allow developments to be fast-tracked and could alter arid streams and risk polluting them. The policy will start 60 days after being published in the Federal Register, which is expected to happen in days. Environmental groups are expected to sue to delay it.



“It’s a nightmare for me to think of what can happen and what I’m afraid will happen,” Gerrodette said. “We’ve been told by ADEQ, that they estimate – what 93%? – of washes will be unprotected. Where I live in Sierra Vista and Cochise County, there are washes everywhere and they’re the life blood of recharging our aquifer because they carry the floods from the Huachuca Mountains.”

Arizona farmers see this as a relief from burdensome government regulations and are casting doubt on the scope of this rule change, while environmental advocates warn of incalculable, unprecedented environmental damage that could come from unchecked waterways.

It’s unclear what protections the state will make through what’s expected to be a years-long stakeholder process. What is known is some changes, like a pollution control permitting program, would need legislative approval. But Arizona Farm Bureau President Stefanie Smallhouse said DEQ is overstating the rule’s reach.

“For the Arizona Department of Environmental Quality to state that there will be many waters uncovered at this point is not true,” Smallhouse said, adding that her group has asked for maps of these ephemeral streams, which she said the department hasn’t provided.

DEQ said it can only provide an estimate for these waters and no such map exists yet, but the EPA is working to make one.

The previous rule, Smallhouse said, required permitting for things that are “normal agricultural practices,” that can take up to two years. Smallhouse said the concerns from environmental groups are disingenuous and made with the intention of controlling land use, not protecting water.

“In the farming, ranching business, you can’t wait two years to plant a crop or to raise livestock or, you know, to put in a pipeline to water your livestock,” Smallhouse said. “I shouldn’t have to hire a lawyer in order to determine whether changing my cropping in a field that’s adjacent to a dry wash is going to require a permit.”

Local Control

The changes affect Arizona’s ephemeral waters, isolated lakes and urban ponds, and all or part of year-round and seasonally flowing streams across the state that only flow after heavy rain, including parts of the San Pedro River. While those waters would still fall under the definitions and guidelines the state uses to determine what is and is not a body of water, there’s no regulatory program for soon-to-be unprotected waters, which DEQ says could lead to serious environmental and economic impacts to the state.

That’s why Gov. Doug Ducey proposed $1 million in one-time funding to the department to conduct an analysis, engage stakeholders and develop program requirements to establish the program. In a written statement, the Governor’s Office said the state supports the “more reasonable” change and that it “respects the state’s role to protect our precious water resources.”

DEQ spokeswoman Erin Jordan said while it supports the federal government’s narrower definition as it was proposed in December 2018, it recognizes Arizona’s waterways need to be better defined.

“ADEQ acknowledges that the narrower definition creates a gap in protection for many Arizona waterways,” Jordan wrote in an email, adding that the department is developing a “local control approach” to protect the state’s water resources. Jordan said the department would not comment in detail until it has fully reviewed and understood how it will affect the state’s waterways.

Gerrodette said complying with regulations may feel like a burden to some, but it’s better for everyone and the environment to have a delicate and diligent process in place to help ensure no adverse, long-term damage is done for the sake of a short-term gain.

“The developers would be salivating over this new rule and we citizens would have no basis in the law for requiring that there be an examination of the impact of filling in all those washes,” Gerrodette said, adding that while there is money to be made with these developments, there’s just as much, if not more, to be made in preserving these places.

It’s impossible to calculate the possible effect of what Gerrodette calls an “open season” for developers and is skeptical but slightly hopeful of what rules the department will craft. Once anyone starts building and altering these lands more freely, Gerrodette said, unregulated development could forever change the flow of and risk polluting these season streams, the veins, the lifeblood that flows into these larger rivers and aquifers that rural Arizonans and wildlife depend on.

“For the rural counties who depend upon an aquifer, to have drinking water, we need those washes to recharge those aquifers so we can still have water,” Georrodette said. “We don’t have the luxury of CAP and we depend on rainfall being able to percolate down into the ocean aquifer and washes are critical to that.”

One comment

  1. The beaver dam is a great example of why retention projects work. If the San Pedro River had retention/dams, then it would have more water. Slow the water down.

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