Arizona Builders Dispute Santa Cruz River Decision
NAHB has joined home builders associations in Central and Southern Arizona to protest a U.S. Army Corps of Engineers determination that the Santa Cruz River, fed mostly by wastewater from treatment plants, should be classified as “traditional navigable waters” protected under the U.S. Clean Water Act.
The controversial finding was based on misleading historical documents, the home builders say, including a 19th-century promotional land sales brochure showing “ocean-going steamships moored at a busy Santa Cruz River wharf.”
The Corps’ recent decision can have a profound impact on the home building industry and where new housing can be built in Arizona.
While the Clean Water Act should protect more than just traditional navigable waters, NAHB said, agreeing with the 2006 Rapanos ruling by the Supreme Court, there needs to be a consistent way to define these waterways.
“It’s not whether the Santa Cruz River may be regulated under the Clean Water Act,” said NAHB Duane Desiderio, NAHB’s staff vice president for legal affairs. “It’s whether it really is a traditional navigable waterway,” a question that has a bearing on its tributaries and the lands surrounding them and could have consequences for future decisions on other questionable waterways, he said.
Connie Wilhelm, president and executive director of the Home Builders Association of Central Arizona, and Ed Taczanowski, president of the Southern Arizona Home Builders Association, joined NAHB in signing a July 25 letter to the assistant secretary of the U.S. Army spelling out why they disagree with the determination from the Corps’ Los Angeles District office that parts of the river in southern Arizona are navigable waters.
Posted earlier on the Corps’ Web site, the decision has now been removed pending further policy review.
The 13-page letter cites a 2006 decision by the Arizona Navigable Stream Adjudication Commission, which researched historical records to determine that “the Santa Cruz Valley has served as an overland trade route since prehistoric times, but there is no documented record of any trade or travel on the river.” Instead, commerce in the area has been “accomplished by horseback, wagon, pack mule, trains and later automobiles as the road system improved.”
The occasional flow of water in the Santa Cruz River has been used to irrigate nearby farms and provide some domestic water supply, but never for boating or shipping, the records show.
Among other documentation used by the Corps to decide that the river once was navigable is a group of boaters’ humorous newspaper account of floating down the river in a canoe after a flooding rainfall in 1993. The trip lasted for three miles.
“Even more troubling is the failure to acknowledge the role that sewage effluent plays in maintaining minimum flows,” the home builders’ letter said. The U.S. Geological Survey has determined that the base flow for part of the Santa Cruz River is regulated by a Rio Rico sewage treatment plant and that there is no natural flow for the river during most of the year, NAHB said.
It’s unclear whether the Corps will respond to the concerns voiced by home builders because the agency is not required to accept public comment in making or in changing its determinations, Desiderio said, but builders are hoping that the decision will be reevaluated.
“It’s frustrating, because this determination has serious implications and there were no public hearings or formal opportunities for comment,” he said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.