Arizona’s Surface Waters Protection Rule
Over the last year, the Arizona Department of Environmental Quality (ADEQ) has been working closely with key water users to develop a framework for a State-led surface waters protection program. After months of working closely with stakeholders, ADEQ has presented bill language to the legislature.
When discussions about this program began in February of 2020, Farm Bureau voiced serious concerns about the conceptual framework of the program. At the time, ADEQ claimed that the purpose of the program was to “protect” all the waters that became unregulated by the Trump administration’s Clean Water Rule, which replaced the 2015 WOTUS Rule. Our fear was that this would practically undo the rollback of the 2015 Rule. Not wanting to waste all the time we spent fighting for clean water and clear rules, Farm Bureau joined with many other Arizona business and industry groups to push back against creating an Arizona program that had the potential to nullify our hard-fought victory over WOTUS.
What followed was months of stakeholder meetings and public forums to discuss what a state-led waters protection program should look like. And now, we are happy to say we can support a bill currently before the Arizona Legislature that outlines an Arizona Surface Water Protection Program.
The Basic Framework
The proposed program basically imposes the existing Clean Water Act framework onto certain state waters that may not fall under federal jurisdiction. These state-specific protected waters will be subject to the same permitting program and fees as the Clean Water Act’s 402 program, so there will be one set of standards, regardless of whether the water is regulated under the federal program or the state program.
One of the major concerns we had going into this process was how to determine which of Arizona’s waters would be regulated – and how an individual landowner could do so without hiring a team of engineers and hydrologists. ADEQ worked with stakeholders to develop a concrete list of state-specific protected waters that will be subject to this framework. Upon completion of the program’s rules, there will be a literal map of regulated waters that shows which waters are regulated and which waters are not – a level of clarity that was impossible under the 2015 Rule.
Moreover, before this list is finalized, there will be a public rulemaking period that allows stakeholders to comment on the waters included on the list. This will give Farm Bureau members an opportunity to say whether there are waterways that should be removed from the list and require ADEQ to respond to those concerns.
But perhaps even more positive is the list of waters that are not regulated under the Arizona program. The bill specifically lists waters that “shall not” be regulated, including ditches or canals, irrigated agriculture, stock tanks, groundwater, and ephemeral waters. These are key exemptions to help protect agricultural interests from having to obtain permits to undertake normal and proper resource management projects on their own land.
Added Layers of Protection
No matter how well-structured the framework, however, there is still a lingering question: what is the point of all this if the Biden administration is just going to reinstate the 2015 Rule anyway? It’s true that President Biden has very quickly made it clear that environmental regulations will be a key focus of his administration. EPA secretary-designate Michael Regan said in his confirmation hearing that he is “looking forward to convening multiple stakeholder groups” to continue the discussion about the definition of WOTUS. But rather than discouraging us from supporting this framework, the near certainty that the new administration will be opening this discussion once again is one of the reasons we support the ADEQ program.
With an Arizona Surface Waters Protection Rule in place, Arizona will be in a stronger position to push back against additional regulation from the federal government. When we can show that our state has already undertaken to protect our water, we have strong legal footing to challenge (and seek an injunction against) misguided bad federal policies. Without it, we play into the argument that states aren’t equipped to protect water on their own when in reality, the opposite is true: these kinds of programs should be state-led and state-driven and based on the unique needs of the people and industry of that state.
We believe that this bill represents a success story: an agency saw a need for additional regulation but worked with the regulated community to make sure that the program made sense. Those of you who are Farm Bureau veterans will know that support of surface water regulation is not something we often proclaim as an organization. Yet, thanks to the tireless efforts of ADEQ to work with the regulated community as it drafted this program, we are happy to say that we support the framework and believe it is best for Arizona.
Understanding the critical need for a program that worked for all stakeholders, ADEQ provided ample opportunities for us to express our concerns. Then, ADEQ listened. The result was the creation of a program that does not contain the troubling aspects of the 2015 Rule but will still satisfy the concerns of those who want additional protection for Arizona water. That’s the kind of government we can get behind, and we look forward to updating you on the program’s progress over the next few weeks.
Editor’s Note: The bill outlining this program passed through the Arizona House of Representatives on a party-line vote. It awaits a vote on the Senate Floor.