Arizona Wants to Control Clean Water Act Permits, Despite Environmental Concerns

The Arizona Department of Environmental Quality is determined to take over a Clean Water Act program regulating what gets dumped into canals, rivers and wetlands, despite concerns by environmentalists.

If it succeeds, Arizona would oversee the granting of permits to dump dredged and fill materials into certain waterways — including rivers, streams, washes, and lakes — that are defined as "navigable." Under the law, that means any waterway "subject to the ebb and flow of the tide" or that are, or could be, used for commercial transportation. It would become just the third state in the country to assume primacy, as the process of federal-to-state control is formally known.

The ADEQ says it can grant permits just as safely and more efficiently than the current administrator, the Army Corps of Engineers.

But some participants in the process are doubtful of those claims and are critical of the state’s efforts to prove it can adequately manage the permitting process. Under Section 404 of the Clean Water Act, developers, utilities, mining companies, government departments, and others working on projects like dams, levees, airports, highways, or mining sites need a permit in order to discharge dredged or fill materials into these waterways. They must show that their projects won’t significantly degrade water quality, or that they have no choice but to dump those materials into the water.

Skepticism that the ADEQ could handle this responsibility surfaced on Tuesday, when the ADEQ held a meeting for the mix of consultants, industry lawyers, government representatives, and handful of environmentalists charged with helping to put together a plan to demonstrate Arizona’s ability to grant these permits.

Under the current program, major projects are subject to the National Environmental Policy Act, an extensive process that assesses potential environmental, economic, and social impacts. That would change if Arizona assumed responsibilities, leaving environmentalists dubious about ADEQ’s ability to protect the waterways.

“There is no NEPA equivalent in Arizona,” said Sandy Bahr, director of the Grand Canyon chapter of the Sierra Club, speaking up during the meeting. “That is a huge issue.”

Bahr also criticized ADEQ’s proposal to fund its permit program through fees rather than through appropriations.

Bahr said in an interview with Phoenix New Times that this structure was financially unstable and would give the ADEQ an incentive to dole out permits. “It makes it difficult to keep your program intact if your economy" — she made a spluttering sound. “If nobody’s asking for permits, then how do you fund your program?”

The Sierra Club staunchly opposes Arizona’s proposed takeover of the Section 404 permits. “We maintain that the 404 program should continue to reside with the Army Corps of Engineers,” it wrote in a letter to the ADEQ in July that was co-signed by 12 other organizations, primarily environmental advocacy groups.

During Tuesday’s meeting, Bahr was one of just two representatives from environmental groups. Out of everyone at the meeting, she was one of a few openly critical voices. Several people expressed concern about the amount of work that the ADEQ expects its working groups to finish by December.

“We have a charter that gives us many, many tasks to accomplish,” Tricia Balluff, the chair of the agency's Permit Process working group, told attendees at Tuesday’s meeting. She listed a slew of processes and questions that the group of 21 was trying to review and address in the next few months.

Afterward, other participants quietly echoed those worries.

“There are concerns about ... by having such a tight time frame, we might not be able to go as in-depth with our feedback as we might like to," Nichole Engelmann, a wildlife biologist with the U.S. Fish and Wildlife Service, told New Times after the meeting.

Engelmann, who is part of the Endangered Species Working Group, said that if they cannot meet the deadline, the group would ask for an extension.

Another fear is that if Arizona takes over the permitting process, federal protections for plants and wildlife, through reviews under the Endangered Species Act or opinions offered by the Fish and Wildlife Service, will slacken. Under the current system, federal groups can consult with one another on endangered species. But ADEQ doesn’t have the same authority.

Some stakeholders have worried that if Arizona takes responsibility for permitting, they won’t be able to consult with the U.S. Fish and Wildlife Service about the effects of their projects on plants and animals, Engelmann said. Some people like that assurance, and they like the process the way it is, she added.

The ADEQ openly acknowledged that it is trying to move quickly, and that it is operating on the assumption that ADEQ should take over the permitting process and not, as environmentalists like Bahr would prefer, as though it were on a fact-finding mission to determine whether the agency even should take over.

“When we put the working groups together, we knew it was an aggressive timeline,” said Trevor Baggiore, the director of ADEQ’s Water Quality Division. He added that if the December 20 deadline was not met perfectly — if one or two groups needed more time — there wouldn’t be “any particular consequence.”

The purpose of the groups was to help the department identify potential “roadblocks” to gaining state control, Baggiore said. The state needs the approval of the Environmental Protection Agency before it can assume control, and the ADEQ intends to submit a proposal to the EPA by the summer of 2020. “By the way we run it, it’s going to be a better program,” he said.

Baggiore said it was important to him that environmental groups participated in this process. Yet even as he acknowledged that grassroots or local environmental groups typically have fewer resources than industry groups, making it harder for them to send staff to stakeholder meetings, he seemed to shrug off that concern.

“If they’re not wanting to make their voices heard, I don’t know how else we can get them to participate,” he said.