Arizona Businesses Fight Clean Water Rule

PHOENIX (CN) - Arizona miners, farmers and business groups sued the United States for expanding the definition of federal waters to include desert areas where a storm can set a stream running after centuries of dry sand.

Business groups in Arizona and New Mexico sued the Environmental Protection Agency and the Army Corps of Engineers, contesting a new rule that has provoked lawsuits this summer from states and businesses all over the country . A federal judge in North Dakota ruled in favor of 13 states in one lawsuit a week ago. The states and federal government now are arguing whether the judge's injunction should apply nationwide, or only to the 13 states .

The new plaintiffs, led by the Arizona Mining Association, the Arizona Farm

Bureau, and the Association of Commerce and Industry, claim the rulemaking exceeds the government's authority under the Commerce Clause and the Clean Water Act.

In their Sept. 1 federal lawsuit, the groups claim the EPA and the Corps of Engineers used the "flimsiest policy rationales and scientific and other record support, including the extraordinarily over-inclusive (and factually erroneous) assertion that 'physical indicators of a bed and banks and an ordinary high water mark ... are sufficient to establish a jurisdictional nexus to navigable waters.'"

The rule should not apply to Arizona and New Mexico, "where highly erodible soils, and irregular flow events, can give rise to such topography even if years, decades, or even centuries have passed since water has flowed. Features can be formed in response to a single storm event, and persist indefinitely, even if they never convey water again," the lawsuit states.

The groups claim the rule categorizes some privately owned features as "tributaries," while exempting lands in other areas of the country that are connected to traditional "waters of the United States" and receive regular rainfall.

"EPA's new rule rests on the implausible idea that vast expanses of bone-dry, Southwestern desert can be subject to intrusive federal regulation as 'waters of the United States,'" Arizona Mining Association president Kelly Shaw Norton said in a statement. "What is worse, under the new rule, an agency official in Washington, D.C. can deem an expanse of desert to be a 'water of the United States' even if relevant topographical features do not actually exist."

The groups claim the rule will subject "land owners and business operators, who never dreamed their activities could affect navigable waters, to unlawful and unreasonable burdens - not only the cost of assessing vast expanses of land to determine which features are jurisdictional, but also the staggering burdens of complying with the Clean Water Act in using lands magically transformed by bureaucratic decree into waters."

New Mexico Farm & Livestock Bureau CEO Chad Smith added: "New Mexico farmers and ranchers are already struggling with the effects of a five-year drought, a tough economy, and countless other challenges. It defies common sense that the EPA now wants to pile on more regulations under a law intended for navigable waters. The massive costs this new rule will impose on the hardworking families who provide our food are simply unacceptable."

Implementation of rule, announced in May, was to take effect Aug. 28. After the North Dakota ruling, the EPA said it would stop implementation in those 13 states, but continue to enforce it elsewhere.

"About 117 million Americans - one in three people - get drinking water from streams that lacked clear protection before the Clean Water Rule," the EPA said in a statement. "The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin."

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