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CONSERVATION ACTION ALERT

Arizona Legislative Session 2018

Policy Alert! Bad water bills.

Time to speak up for sensible water policy this legislative session! Several harmful water bills have been introduced which need public input! As birders all recognize, our riparian areas and water resources are both important for bird habitat and human security in the desert.   The State of Arizona has moved to take over the Clean Water 404 Permit program, Underground Injection Well Permit program and compromise water adequacy requirements outside Active Management Areas (SB1493, SB1494, and SB1507). These titles and programs can often sound technical and difficult to understand, but each of these programs has direct and important impacts to everyday citizens. If you would like to learn more please see the Conservation article in these quarters Flycatcher (titled Water is Life), sign up for Conservation Action Alerts and direct all questions to Nicole Gillett, Conservation Advocate.

The best way for citizens to voice opinions on these and other bills in this legislative session is to either 1) show up in person to relevant days in Phoenix (if you are interested in doing this please contact Nicole), OR 2) sign up to ‘Request to Speak’ ONLINE. The online request to speak is the easiest option to submit comments on one or multiple bills. It does require setting up and account online and then verifying that account in person either in Phoenix or in Tucson downtown. If this is burdensome to you PLEASE contact Nicole as we can arrange for someone else to verify your account. Please visit https://apps.azleg.gov/ to start your account!

Does ‘Request to Speak’ confuse you? Would you be interested in a ‘Request to Speak’ workshop in the future- maybe next week? Let me know! I am happy to help people access this very important public participation tool. I know we can’t all drive up to Phoenix every time an issue comes up, so this is often our best option!

Examples of Comments to submit:

SB1493 environmental quality; dredge, fill permits (Griffin)

  • Clean and secure water is central to life in the desert and the protection of our riparian areas helps protect both people and our environment for the future.
  • In Arizona 94% of our waterways are ephemeral or intermittent and we see what that means in action every monsoon season. Our waterways are ever changing but still provide critical habitat to 80% of wildlife in Arizona.
  • We in Arizona have benefitted from that clear definition the 2015 Waters of the US rule (WOTUS) provided. From issues around erosion to chemical pollutants to impacts from development, we need the Clean Water Act to ensure our own health and the health of our water systems continues to be protected.
  • Arizona is not ready to assume financial or environmental protection responsibility of this expensive program. It would place a huge burden on the taxpayers and create a pay-to-play model which could lead to a conflict of interest at ADEQ.
  • The public has not been adequately informed as to the cost and implications of this process. ADEQ needs to consult with ADWR and then start a public consultation process before moving forward to assume primacy.  

 SB1494 underground injection control program (Griffin)

  • Similar to the concerns with the 404 program, the state of Arizona is not financially ready to assume this program Arizona lacks the regulatory framework to move forward at this rapid pace, and more inter-agency and public involvement needs to take place before this is pursued.
  • While Arizona has an aquifer protection permit (APP) program, it is significantly different than what would be required for a UIC program.
  • Again, similar to the 404 Permit, the state as proposed used a ‘fee-for-service’ model which would fund the program through the permits it issues. This creates a conflict of interest and incentive to issue more permits which may not be in the public’s best interest.

SB1507 water program amendments (Griffin)

  • Arizona recognized the unsustainable use of groundwater in this state with the Groundwater Management Act of 1980. Within an Active Management Area, or AMA, a new development must demonstrate a 100-year assured water supply for new growth. Except that AMA’s only cover 23% of the state. Outside of the AMAs developers must demonstrate an ‘adequate 100 year water supply’ which has fewer requirements and is vague at best. This bill would allow those cities and towns already outside of an AMA to simply opt out of this requirement and this threaten current water supply and create a very uncertain water supply for the future.
  • The Adequate Water Supply program was created as consumer protection program – and is important for just that, to attempt to use water is a sustainable way for all residents.
  • Gov. Doug Ducey vetoed a past version of this bill in 2016, demonstrating the short sightedness of this method of water management for the citizens of Arizona outside of AMAs.
  • This bill would also extend an over pumping allowance for another 10 years -  extending existing requirement that groundwater pumping operations meet "safe yield" requirements by 2025, until 2035. This would quite clearly push the burden of consequences for over pumping to the next generations of water users, threatening a sustainable water supply.
  • This bill particularly threatens Arizona’s already stressed water resources of the San Pedro River in Southern Arizona and the Verde River north of Phoenix.
  • Proposed developments in Arizona need to be able to demonstrate that they are able to provide water to future residents, protect the supply for current residents, and not damage the critical water resources of our surface AND groundwater!

Background on Water in Arizona

Many of you may have read this month’s ‘Water is Life’ article in our Flycatcher magazine. Here is some of the background information that article provided on the Clean Water 404 Permit Program, Underground Injection Permits and why (sometimes complex sounding) water policy is SO important here in Arizona.

Background: The Clean Water Act (CWA), Waters of the U.S. (WOTUS), and the 2015 Clean Water Rule

•             Established in 1972, the CWA is the only federal legislation aimed at assuring water quality. It provides guidance on how specifically designated WOTUS should be regulated and how otherwise unavoidable impacts to WOTUS should be mitigated.  In 2015, the Clean Water Rule (Rule) was proposed to clarify previous court decisions on how to define WOTUS, recognizing the complex connections between perennial waterways which flow year-round and those that do not, such as the many ephemeral and intermittent streams that characterize much of the western United States.  Fortunately for Arizonans and our birds, the 2015 Rule determined that any waterway with a significant nexus to waterways with year-round flows is covered by the CWA.  Arizona residents and wildlife benefit from that sensible definition. From erosion and flooding, to chemical pollutants, to impacts from development, we need the CWA and 2015 Rule to ensure the values, health and functions of our watersheds and the ecosystems our lives depend upon.

Characteristics specific to Arizona

•             Arizona has lost over 75% of our historic riparian habitat. 94% of Arizona waterways are ephemeral or intermittent, which we see in action every monsoon season even though they do not flow year-round. Nonetheless, our riparian areas nourish us with clean water and provide crucial habitat to 80% of the wildlife in Arizona. Examples: The San Pedro Riparian system supports more than 400 bird species – as many as 4 million birds every year - as they migrate, forage, nest and raise their young.  The Santa Cruz River, much of which is effluent dependent, provides habitat for threatened and endangered species and numerous birds. The Arizona Game and Fish Department and partners have recently released the Santa Cruz Watershed Management Plan https://inthecurrent.org/fs/the-santa-cruz-watershed-management-plan-is-now-available/.

Important federal actions

•             On June 27, 2017, the Trump administration officially proposed dismantling the 2015 Rule.  This announcement has left water users, providers and regulators once again uncertain, if not confused, over what will be considered a WOTUS. Governor Ducey has asked the EPA to revise federal rules to give states the power to decide which streams will be protected as “Waters of the U.S.” Ephemeral washes such as the Rillito River, Pantano Wash and a host of washes near the proposed Rosemont Mine site southeast of Tucson, including Barrel Canyon and McCleary Canyon, would not be considered WOTUS per the Governor’s recommendation http://tucson.com/news/local/gov-doug-ducey-asks-epa-for-power-to-regulate-arizona/article_fb9fe0ee-0da1-561e-af4b-b209ee0857ec.html.

What are the implications of the Arizona Department of Environmental Quality (ADEQ) considering the assumption of the responsibilities of implementation and enforcement of the Section 404 Permit Program of the Clean Water Act?

The CWA 404 Permit Program is currently administered by the U.S. Army Corps of Engineers in Arizona and takes over 600 permit actions per year. Section 404 of the CWA allows states or tribal governments to assume control of dredge and fill permitting from the U.S. Army Corps of Engineers (ACE) under oversight of the U.S. Environmental Protection Agency (EPA). Some states have developed wetlands and aquatic protection programs, and have assumed partial control over the permitting process, but have not assumed responsibility for the entire Section 404 permitting program. In order to assume control of the entire CWA Section 404 permitting program, states or tribes need to develop a wetland permitting program consistent with the requirements of the CWA regulations at 40 CFR Part 233 and submit an application to the EPA and ACE to assume the program. They need to have permitting standards and procedures compliant with Section 404(b)(l) guidelines, regulate similar activities, be able to adequately staff and fund the program, provide for public participation, and prove jurisdictional and regulatory authority, environmental compliance, and enforcement authority. They must prove they meet the above criteria by including a statement from the state Attorney General certifying that their state laws provide adequate authorities. The EPA then has 120 days to review the application and, when deemed complete, initiate a public comment period and public hearing(s), following which the EPA renders its decision. Since 1972, only two states have successfully completed the process. Assumption is much more difficult now than it was in the 1980s and 1990s, because of how much the program has changed from court cases and legal challenges which have “muddied the waters” defining WOUS.

Why would a state pursue this option and what benefits and obstacles can be expected?

The primary reason states seek to assume control of the Section 404 permitting program is that they imagine they can streamline the permitting process better than the federal government by either matching their program to the requirements of the federal program or by developing a new program greater than or equal to federal law. This requires enabling legislation and rulemaking. States must, at minimum, comply with CWA regulations at 40 CFR Part 233, including over a dozen categories of requirements, most of which have their own unique set of rules. In addition, the financial cost of implementing a new program is significant, and it is often difficult, if not impossible, for states to manage. While the federal government provides grants for the development of a wetland program, such grants do not continue for the implementation period of a program. Immediately upon assumption, the state must absorb financial responsibility for a large number of new tasks and must have already hired and trained staff to handle the permitting process. For example, the oversight of approved compensatory mitigation program(s) under the 2008 Mitigation Rule, to offset unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved, is required in perpetuity. Such endeavors can significantly increase a state’s budget via direct and indirect costs. In an EPA report, members of EPA’s Wetlands Division interviewed nine states and found that the lack of implementation funding is a “threshold barrier to assumption.”

Even if a state were to assume control over the CWA Section 404 permitting program, the state does not gain control over all waterways and all programs.  Applications still frequently face a need for a dual-agency process requiring multiple permits and confusion may remain over who controls what water body https://www.epa.gov/cwa-404/state-or-tribal-assumption-section-404-permit-program. Examples:  States have no jurisdiction over tribal waters; the EPA and the ACE have jurisdiction over Section 10 of the Rivers and Harbors Act (the Colorado River), and; the U.S. Fish and Wildlife Service (FWS) and the U.S. National Oceanic and Atmospheric Administration (NOAA) Fisheries Service have jurisdiction over compliance with the Endangered Species Act (ESA). All projects with a federal nexus are required to comply with the National Environmental Policy Act (NEPA), providing opportunities for the public to comment and be involved in the decision-making process. Thus far, most states have found it to be more trouble than it is worth but, under the current administration, many are looking to Arizona as a bellwether state.

The CWA has been remarkably successful in protecting public health and safety by discouraging industry and agricultural pollution and abuses. When the Cuyahoga River outside of Cleveland, Ohio was so polluted it caught on fire in 1969, it prompted the America people, and eventually Congress, to consider greater protections for our water and helped to spur the environmental movement. In Tucson, the Santa Cruz River effluent stream used to be one of the most toxic in the country – people were warned not to touch it! Now it is one of the cleanest and is supporting an endangered aquatic species after an absence of 74 years – the Gila topminnow http://tucson.com/news/local/endangered-topminnow-s-return-to-santa-cruz-river-in-tucson/article_ea215f68-69de-5ec2-bb8a-168c60b3b513.htm. To weaken, or lose any of our environmental protections would be a huge step backward. If anything, we need to strengthen the CWA, the Clean Air Act and the ESA – they are our best hope and our defense to ensure our own and future generations’ health and safety.

What are the implications of the ADEQ considering the assumption of Primacy for Underground Injection Control (UIC)?

As with the CWA 404 permitting program, Arizona previously tried and failed to take over the EPA’s UIC federal program which is mandated to protect underground sources of drinking water (USDWs) via permitting, construction, operation, and closure of injection wells https://www.epa.gov/uic/primary-enforcement-authority-underground-injection-control-program. Currently, thirty-four states and three territories have EPA approved primacy programs for well classes I (industrial and municipal waste disposal), II (oil and gas related), III (solution mining), IV (shallow injection of hazardous and radioactive materials) and V (non-hazardous fluids into or above underground sources of drinking water).  Additionally, seven states and two tribes have applied for and received primacy approval for Class II (oil and gas related) wells only. As yet, no Class VI (carbon sequestration) primacy applications have been approved by EPA.  Achieving primacy for any class will require ongoing additional funding, enabling legislation, and rulemaking. State law currently requires an aquifer protection permit (APP) program to control discharges of any pollutant or combination of pollutants that are reaching or may with a reasonable probability reach an aquifer and a permit program for underground injection control described in the safe drinking water act but, the APP, while similar, significantly differs from the UIC. Similar to the rationale for assuming the CWA 404 permitting program, “streamlining the permitting process” and “enhancing environmentally responsible growth” are stated goals and will require a fee for services structure.

These and other bils which aim to reduce our environmental protections and public investments in our future are not only harmful to birds and wildlife, but our own health and public safety.

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