Arizona Abandons Controversial Effort to Manage Clean Water Act Permit Program

Fossil Creek in the Coconino National Forest in Arizona.
In a major reversal, the state of Arizona halted its efforts to take over a Clean Water Act program regulating dumping into streams, rivers, and other waterways, the Department of Environmental Quality announced December 3.

The department's sparse explanation of its decision to abandon a goal it spent a year and a half pursuing cited support from stakeholders — cities and industries, including agriculture, home-building, and mining — for "retaining the current process."

Comments to ADEQ from tribes, counties, utilities, flood control districts, and others show staunch opposition to its proposal, for myriad reasons. Few voiced support.

The reversal comes roughly 18 months after ADEQ first began the process of attempting to take over permits that are granted under Section 404 of the Clean Water Act. Cities, developers, mining companies, and others must obtain such permits in order to discharge dredged or fill materials into federal waterways, including streams and rivers. The Environmental Protection Agency and the U.S. Army Corps of Engineers currently administer the program.

The change also comes a few months before the Trump administration is expected to drastically curtail the number of waterways that qualify for federal protection — a looming change that spelled uncertainty for Arizona's would-be permitting program.

Arizona's attempted assumption of the permitting program solicited the input and involvement of 472 people who attended meetings, joined work groups, and filed more than 2,100 comments, ADEQ said. It also formally consulted with eight different federally recognized tribes — out of 22 it could have consulted with, critics pointed out.

The majority of those stakeholders, it turned out, didn't want ADEQ to take over the program, which would have entailed creating a program with 10 full-time staff and an annual cost of $2.5 million.

Some critics raised fears that endangered species and cultural resources would lose protections under a state-run program. Others said that it would be too much for ADEQ's limited resources, expertise, and staff; that the pro-business ethos of the Ducey administration would get in the way; that the cost of permits would be prohibitively expensive for smaller entities; and that the state wouldn't be able to handle border issues, among a slew of other worries.

"I understand that ADEQ is under pressure to assume a state Section 404 Program as expeditiously as possible," Jane Russell-Winiecki, chairwoman of the Yavapai-Apache Nation, wrote to ADEQ Director Misael Cabrera in a letter dated September 11.

She cited "significant deficiencies in the Roadmap's consideration of tribal interests and ADEQ's insufficient engagement with tribal stakeholders" in requesting that ADEQ extend its timeline "as long as necessary for us to schedule a meeting with you to discuss the details" of the program.

Other tribal leaders echoed those concerns.

Maria Dadgar, the executive director of the Inter Tribal Association of Arizona, a consortium of 21 federally recognized tribes whose lands cover some 28 percent of Arizona, "strongly" urged ADEQ to "re-evaluate its timeline for assumption in order to allow for a more thorough evaluation of impacts to tribal nations in Arizona."

Despite its apparent haste, the department was somewhat behind schedule when it decided to abandon ship. It had planned to have a draft rule by November 2019, according to an early road map of the process, but by September, it was still gathering input from stakeholders, and it extended its comment period to November 18.

Sandy Bahr, director of the Grand Canyon chapter of the Sierra Club, lauded the decision but warned that ongoing rollbacks of environmental protections at the federal level still pose grave threats to Arizona's precious waters.

"We are pleased that they are not pursuing this," Bahr told Phoenix New Times. "We participated in the process and raised concerns throughout."

Many of those waters are slated to soon lose federal protections under a separate change in rules at the federal level, which could have thrown Arizona's Section 404 program into turmoil, had it succeeded it establishing one.

The Trump administration's rollback of the definition of Waters of the United States, or WOTUS, is expected to take effect early next year. With that change, the vast majority of Arizona's washes and streams no longer would be subject to federal regulations under the Clean Water Act. Instead, they would be left to Arizona to protect.

About 85 to 93 percent of waters and drainages in Arizona currently fall under the federal definition, ADEQ Director Cabrera told attendees of a public meeting at the Arizona Department of Water Resources on Tuesday morning. "That definition is now much narrower," Cabrera added. In a nod to his views on federal protections, Cabrera claimed that these waters were "inappropriately" regulated.

Misael Cabrera, ADEQ director - ADEQ
Misael Cabrera, ADEQ director
ADEQ is now working on its own version of such a program, called Waters of Arizona.

In a letter to Cabrera in November, Robert Valencia, chairman of the Pascua Yaqui Tribe, cited these upcoming changes as part of his explanation for the tribe's opposition to ADEQ's proposed Section 404 program.

As of mid-November, Valencia wrote, ADEQ's Water Quality Division Director Trevor Baggiore had yet to identify which applicants for 404 permits would no longer need them under the rolled back definition of Waters of the United States.

"This seems problematic," Valencia observed, "particularly considering that ... the Section 404 program will be fee-based. At the very least, ADEQ should delay the pursuit of a Section 404 program until the WOTUS Rule is finalized and any expected litigation resolved." 

In a statement to New Times, Valencia welcomed ADEQ's decision.

"The Pascua Yaqui tribe has expressed from the start of the proposed Clean Water Act Section 404 Assumption by ADEQ that our Tribe's rights under such a proposal would not be adequately protected," he said through a spokesperson. "We are pleased that ADEQ agrees and that they will not be pursuing the assumption."

Muriel Uqualla, chairwoman of the Havasupai Tribe, said the tribe was "elated" by ADEQ's decision, and Coucilwoman Carletta Tilousi, also of the Havasupai Tribe, thanked the department for considering the tribe's concerns about protecting sacred sites that do not fall within the boundaries of the tribe's reservation.

"The Havasupai Tribe retains strong cultural and spiritual ties to our aboriginal territory, much of which lies outside the boundaries of our Reservation," Uqualla said in a statement. "Because so many of our sacred sites are off-reservation, it is essential that 404 permitting authority remain with the federal trustees to ensure adequate protection for our aboriginal territory and the resources that we continue to utilize on those lands."

Critics of ADEQ's push for assumption of the 404 program long had warned of flaws in the department's plans for a comparable, state-managed program.

Chief among those concerns was its model of generating revenue primarily through permitting fees. Such a system might compromise its work by creating what economists call "perverse incentives" for the department to issue permits, even if in cases where it shouldn't, conservationists, including the Sierra Club, warned in its comments to ADEQ.

“It’s hard to have a strong program when that’s where the funding comes from,” Bahr said.

In one recommendation to ADEQ, the city of Phoenix noted that fee-based income could vary significantly from year to year, based on the economy, which would affect ADEQ's ability to maintain consistent staffing.

The city expressed concern with the department's haste in taking over the program, including its failure to consult with all 22 tribal governments and its failure to take into account the likely impact of the revised WOTUS definition. ADEQ's plans for jurisdictional determinations, it added, "would have a significant potential for misinterpretation and inaccuracy."

Pima County gently told ADEQ that it did not conclude the state's assumption of the Section 404 program would benefit the county, suggesting the state had failed to look at how the new program would actually affect people and communities.

Such a change "would negatively affect our ability to to affect flood control services," the county wrote. "The proposed fee schedule is simply not feasible, and no information has been provided to show how fees were determined. We are also concerned that ADEQ has not completed an economic feasibility study for how assumption would impact both the state and its stakeholders."

That argument pushed back against ADEQ's claim that it would provide permits more efficiently and just as safely as the Army Corps of Engineers.

At least one person questioned bluntly how ADEQ could administer the program in the first place.

"ADEQ needs to seriously reflect on why it is seeking assumption of this program," read one comment from a public meeting in Tucson in June 2018. "The reasons given are not compelling. There is a reason that only two states have assumed responsibility."

Michigan and New Jersey are the only states that run their own 404 permitting programs.

Below: Draft maps of Arizona waterways

click to enlarge A draft map of waters in Arizona. On the left are ephemeral waters, which run only with precipitation. On the right are permanent streams and rivers. - ARIZONA DEPARTMENT OF ENVIRONMENTAL QUALITY
A draft map of waters in Arizona. On the left are ephemeral waters, which run only with precipitation. On the right are permanent streams and rivers.
Arizona Department of Environmental Quality