Government Goings-on

The Arizona Legislature wrapped up its session last week.  Little harm was done in water issues.  Now let’s look at what is happening at the Federal level.

When first enacted, the Clean Water Act of 1972 covered “navigable waters of the United States.”  CWA Section 404 requires a permit prior to modification activities affecting waters of the United States; Section 402 mandates NPDES permits (AzPDES in Arizona, authority being delegated to ADEQ).  In 2006 the U.S. Supreme Court issued the “Rapanos” decision that expanded CWA jurisdiction, provoking howls of protest.  Suddenly isolated wetlands seemingly were covered, and man-made ditches, and ephemeral streams in the West.  Mining, homebuilding, road construction, and new water infrastructure looked to be affected.  Supreme Court justices had different opinions, and the two major opinions (Kennedy and Scalia) were both used by regulators.

On March 25, the EPA and the Corps of Engineers jointly put out a new draft rule on what the Clean Water Act covers.  They dropped the old navigable waters definition in favor of a new definition of waters of the United States that is more inclusive.  You can read the text here.  Comments will be taken until July 21.  The new rule will become effective in 2015.

Expanding the definition of waters of the United States will have impacts on Arizona and the West.  For example, because the CAP canal is connected to Lake Pleasant, CAP may have to obtain a 404 permit prior to dredging or cleaning activities.  SRP may also need 404 permits during its annual cleaning cycle.  Ephemeral or intermittent streams never considered navigable may now invoke 404 or AzPDES permits as tributaries.  And specific case studies may still be needed to determine if a significant nexus exists between waters of the U.S. and isolated “other waters” that are part of the same watershed.  There is no consensus on how much the new rule expands regulatory jurisdiction; and no joy amongst regulated entities.

Consultants and ADEQ may find themselves in a new implementation world as far as 404 and AzPDES permits are concerned.  Situations requiring a permit (or a case study) may be either expanded or clarified — or both.  Sounds like hydrologists may soon be much busier.

Alan Dulaney

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