St. George, Utah Prevails in Clean Water Act Dispute with Army Corps

St. George, Utah Prevails in Clean Water Act Dispute with Army Corps
June 6, 2012

The resort town of St. George, Utah has won a long-running battle to gain approval for an airport on a former drag-racing strip 20 miles outside of town. The Obama administration had threatened the city with $27,500 in fines per day for building the airport on the site, which contains several dry washes that fill with water runoff during rare, heavy rainfalls.

‘Navigable’ Dry Washes

St. George, an oasis town of 73,000 people 190 miles northeast of Las Vegas, is experiencing an increase in tourism due to its beautiful scenery and gateway location to Zion National Park, the Pine Valley Mountains, and the gambling mecca of Las Vegas. To accommodate its growing tourism industry, town leaders early last decade approved building an airport on the old drag-racing strip.

In 2005, the U.S. Army Corps of Engineers determined seven of the dry washes on the proposed airport site constituted “navigable waterways” under the Clean Water Act, requiring a “dredge and fill” permit from the Army Corps.

After the U.S. Supreme Court’s 2006 decision in Rapanos v. United States clarified what does and does not qualify as a navigable waterway under the Clean Water Act, and after a favorable guidance issued by the Bush administration, the city followed through on its plans to build the airport. It began building the airport in 2008 and completed it in 2010.

Obama Revives Objections

When the Obama administration replaced the Bush administration, however, Army Corps officials threatened the city with daily fines.

“Once Rapanos occurred, many people interpreted it their own way. We had many instances of unauthorized activity or noncompliance,” Jason Gipson, chief of the Utah-Nevada Regulatory Branch of the Army Corps, told Greenwire as reported on April 10. “We had people telling each other, ‘You don’t have to worry about the Corps anymore.’”

The dry washes at the airport site “are small enough that a person can step across them,” said Larry Bulloch, St. George’s public works director. “Therefore, any work that would change them would have minimal effect upon any waters of the United States.”

Army Corps Finally RelentsTensions continued building until the Army Corps finally relented and acknowledged the rarely wet dry washes do not constitute navigable waterways under the Clean Water Act.

“On April 4, 2012, the Corps of Engineers determined the washes were not currently regulated under Section 404 of the Clean Water Act because they did not meet the significant nexus standard required to be met since July 2007,” said Karen Clementsen, regulatory project manager with the U.S. Army Corps of Engineers who worked on the jurisdictional determination for the St. George airport.

National Implications

Local governments throughout the United States were watching the ongoing dispute between St. George and the Army Corps because the Obama administration’s Environmental Protection Agency and the Army Corps have published a proposed guidance to replace the Bush administration’s 2007 regulatory guidance. The proposal is currently undergoing final review. Critics argue the guidance will give the federal government power to impose unprecedented restrictions under the Clean Water Act. 

Clementsen said the Army Corps was merely undergoing due diligence before granting final approval for the St. George airport.

“We are not trying to stop projects or delay them; we just need to ensure the project is done in a manner that avoids impacts to waters and wetlands to the maximum extent practicable,” said Clementsen. 

Clementsen said the Corps strives “to permit projects that help us grow economically, but also preserve the integrity of our nation's aquatic resources.”

Correct Decision Reached

“While the federal government finally reached the right decision, it is appalling that the feds put the town of St. George through such anguish,” said Jay Lehr, science director for the Heartland Institute. “A small dry wash in the middle of the desert that contains water only a few days each year is not a ‘navigable waterway’ by any stretch of imagination or language.”

Bulloch said he is relieved the long, stressful process has concluded.

“This issue has been resolved to the satisfaction of all parties,” Bulloch said.

Alyssa Carducci (ad.carducci@gmail.com) writes from Tampa, Florida.