Industry Goes to the Well . . . to dilute clean-water regulations

Water, water, everywhere,
Nor any drop to drink.
--"The Rime of the Ancient Mariner"

Arizona's got water. It's tucked away beneath the ground, in reserves called aquifers. But when we need it, will it be fit to drink?

In large part, that's up to the Arizona Legislature.
Environmentalists, government bureaucrats, big business and, yes, Super Lobbyists have grappled with that question for years. In 1986, a coalition of representatives from all these interests came up with--and the Arizona Legislature passed--a sweeping law that created the Aquifer Protection Permit Program, designed to keep big business, especially the mining and high-tech industries, from dumping toxic chemicals into the state's groundwater supply, which accounts for about 40 percent of the state's water consumption. This happened only after groundwater pollution became so pervasive that citizens threatened to launch an initiative and write the law themselves.

But the ink was barely dry on then-governor Bruce Babbitt's signature before the Super Lobbyists began to chip away at the new groundwater protection law.

Last year, they won an exemption for sand and gravel companies. This year, the Super Lobbyists want to pass a law that would potentially exempt more industries from regulation.

Dave Kimball, who helped to negotiate the 1986 law, is the leader of the pack, on behalf of his clients, including the Arizona Rock Products Association and the Arizona Chamber of Commerce. The environmentalists, who haven't been asked for an opinion since 1986, it seems, sit on the sidelines and shake their heads. And this couldn't happen at a worse time, since Arizona is now contemplating increasing the amount of water it stores underground, through water banking. Water banking, its supporters say, would allow Arizona to hold on to precious Colorado River water the state can't use now, but will need in the future.

Used to be, the Super Lobbyists would use the stealth approach, quietly writing a bill and getting a friendly member to introduce it, hoping that no one would notice as it wended its way through the process. But in recent years, they've had an unlikely ally: the Department of Environmental Quality, which is supposed to be enforcing rules, not fighting for their dilution.

"Every year, it seems like, Kimball comes in with some weakening amendment," says David Baron of the Arizona Center for Law in the Public Interest, who also worked on the 1986 law.

"I don't think anybody expected that the law would remain in stone," Baron adds. "But there was sort of a gentleperson's understanding that if people were going to change the law, they would sit down with the same group of interests and try to work it out. And these guys never did that. They just waltzed in there every year with these secret bills. . . . Now they don't even bother to do that. They go to DEQ first, get DEQ to sign off and then they introduce them. And they never talk to the environmental community about them."

Why bother, when you're a Super Lobbyist?

Sandy Bahr, the Sierra Club's "conservation outreach coordinator" (read: lobbyist with little power), is often alone at the Capitol in her battles to preserve the Aquifer Protection Permit Program, the centerpiece of the 1986 law. The program requires businesses to get permits from DEQ before dumping chemicals into the state's groundwater.

Last year was a good example. The sand and gravel industry won a battle it had waged for years, finally exempting itself from the permitting process, even though it dumps potentially toxic substances into Arizona's waterways. The miners' argument: that nonmetallic mineral quarrying--crushing and screening conducted in "ephemeral" waters (streams that do not run year-round)--does not threaten the state's environment and groundwater.

Bahr says that's just not so, that sediment left over from the extraction process threatens wildlife along the waterways. If the sand and gravel industry isn't polluting the water, the Sierra Club asks, why are their representatives so busy trying to avoid regulation?

As she often does, Bahr prepared a memo outlining her organization's concerns, and distributed it to legislators. She mobilized her membership--had them call and write and beg their representatives to vote against the bill.

Bahr and Representative Andy Nichols, a Tucson Democrat, even appealed to the U.S. Environmental Protection Agency for help. The EPA agreed with the Sierra Club's position, as reflected in an April 20 letter, from Catherine Kuhlman, associate director of the water division of EPA's Region IX in San Francisco.

The bill passed anyway. Rusty Bowers, a Mesa Republican and chairman of the Senate Natural Resources and Agriculture Committee, tacked it to a bill that authorized DEQ's continued existence.

(The irony is that dumping by sand and gravel companies will still be regulated--but by the feds, instead of the state. The state permitting process is done in conjunction with standards established by the federal Clean Water Act. If the state doesn't regulate the industry, the federal government will.)

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Amy Silverman is a two-time winner of the Arizona Press Club’s Journalist of the Year award. Her work has appeared on the radio show This American Life and in the New York Times, the Washington Post, Lenny Letter, and Brain, Child. She’s the co-curator of the live reading series Bar Flies, and a commentator for KJZZ, the NPR affiliate in Phoenix. Silverman is the author of the book My Heart Can’t Even Believe It: A Story of Science, Love, and Down Syndrome (Woodbine House 2016). Follow her on Instagram (@amysilverman), Twitter (@amysilvermanaz), and at amy-silverman.com.