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Federal judge in Tucson throws out Trump rule limiting protection of streams, washes

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A Trump administration rule that had halted federal regulation of development along numerous Southwestern streams was tossed out Monday by a federal judge in Tucson.

U.S. District Judge Rosemary Marquez’s ruling found the Trump rule contained “fundamental, substantive flaws that cannot be cured.” Allowing it to stand would risk serious environmental harm, Marquez said.

The ruling means the federal government will once again have more controls over development along washes and streams across this region and the entire country.

It may also lead to a rollback of a U.S Army Corps of Engineers decision from March 2021 that found the agency has no jurisdiction over normally dry washes on the site of the proposed Rosemont Mine in the Santa Rita Mountains southeast of Tucson. The Corps couldn’t be reached for comment on Marquez’s ruling Monday.

But Stu Gillespie, an attorney for the six tribes that won this ruling, said he believes the Corps will ultimately have to reverse itself.

“They’ve got no grounds to stand on now,” he said. First, that rule had eliminated protections for the washes running on the mine site that only carry water after storms, but the judge specifically disagreed with it. Plus, the EPA has found that the Corps misapplied the Trump rule to avoid recognizing some streams running on the site part of the year, he said.

“The third piece of it is the Army Corps refused to consult with the tribes, and blew off its obligations under the National Historic Preservation Act,” said  Gillespie.

Hudbay noted in a statement, however, that the Corps’ decisions on its jurisdiction are valid for five years from the date they’re issued. The agency’s longstanding practice is to honor decisions issued under a prior rule, even after a new rule is finalized, Hudbay said.

“Hudbay strategically invests in stable political jurisdictions with predictable regulatory environments,” said the Toronto-based company. Its efforts to build the $2.1 billion Rosemont project have been stymied by another unfavorable court ruling made in 2019 by a different federal judge based in Tucson.

The Trump administration had approved what it called the Navigable Waters Protection Rule in spring 2020 to replace an Obama administration rule that had tightened up federal regulation of stream-side development under the U.S. Clean Water Act.

Trump and his supporters including developers and farmers had argued that the past rules allowing such regulation represented severe government overreach. Those rules dated back to a 2006 Supreme Court ruling in which five justices were wholly or partially sympathetic to the view that ephemeral streams — which only carry water after storms — legally deserve federal regulation when someone tries to develop along them.

Monday’s ruling is a big victory for six tribes that had challenged the Trump rule, including the Tohono O’Odham Nation and Pascua-Yaqui Tribe based in Southern Arizona. Other tribes joining the suit were the Quinault Indian Nation, the Fond du Lac Band of Lake Superior Chippewa, the Menominee Indian Tribe of Wisconsin, and the Bad River Band of Lake Superior Chippewa.

The ruling applies nationally, meaning that unless it’s successfully appealed, the U.S. Environmental Protection Agency and the Corps will have to revise the Trump rule to fit this decision. The ruling comes as EPA and the Corps were already working to revise the rule on orders from the Biden White House.

Most at stake in the Tucson area and Arizona in general in this case was federal oversight of ephemeral washes and streams — the most commonly found streams in this arid region.

The Trump-era rule had halted any federal control over development along such washes. If the feds conclude that such jurisdiction exists, a developer, mining company or other business wishing to develop along such washes must obtain a federal Clean Water Act permit to discharge dredge and fill material into the washes.

During the course of the latest lawsuit, EPA and the Corps had agreed to have the 2020 Trump rule sent back to the agencies for revision, but had opposed throwing out the rule outright.

That would avoid potentially unnecessary litigation over parts of the current rule as a new rule is drafted, the agencies said. It also would conserve limited resources “and would best serve the interest of judicial economy,” the agencies said.

But in her ruling Monday, Marquez noted that the two agencies had adopted the Trump administration rule despite feedback from EPA’s Science Advisory Board that the rule conflicts with established science, disregards key aspects of a 2015 report discussing the connectivity between ephemeral streams and those that carry water more often, and weakens protection of the nation’s waters, in conflict with the Clean Water Act’s objectives.

Contact Tony Davis at 520-349-0350 or tdavis@tucson.com. Follow Davis on Twitter@tonydavis987.