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ADEQ Considers Seeking Primacy for the Clean Water Act 404 and Safe Drinking Water Act Underground Injection Control Programs

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By Michael Ford

On Monday, December 4, 2017, the Arizona Department of Environmental Quality, Water Quality Division, kicked off a stakeholder process to discuss the potential for the state to seek primacy for two water-related regulatory programs: the Clean Water Act Section 404 (“404”) Permit Program, and the Safe Drinking Water Act Underground Injection Control (“UIC”) Program. ADEQ emphasized that no decisions have been made at this time—the Agency is only considering whether or not to pursue state primacy for either or both of the programs. However, EPA has encouraged states to consider taking primacy of federal regulatory programs where possible.

Regarding the 404 Program, only two states have obtained primacy to date: New Jersey and Michigan. ADEQ briefly considered taking primacy back in 2012, but that effort did not get very far. ADEQ discussed several key challenges to obtaining 404 primacy including establishing which jurisdictional waters EPA will maintain primacy over in the state, and funding the program with permit fees or other sources of income to the state (federal funding is not anticipated to be available).

The meeting attracted a standing room only crowd at ADEQ, and is merely the first step in ADEQ’s deliberation process. There was a lively discussion among stakeholders and ADEQ covering such topics as funding, the Endangered Species Act, the National Environmental Policy Act, and state agency fees. While there were very few answers able to be given by ADEQ at this point, given the infancy of the stakeholder process, ADEQ did, of course, promise a rigorous stakeholder process should its consideration of taking primacy over this program continue.

The UIC has been assumed by many more states, at least in part. ADEQ considered applying for UIC primacy 20 years ago, and is one of only 8 states that have not been delegated any portion of the UIC program. While the program is similar to the Arizona Aquifer Protection Permit program, there are key differences that will require new legislation and regulations, should ADEQ continue to pursue the program. ADEQ’s plan would be to adopt a UIC regulatory program separate and apart from its APP program.

ADEQ will now consider whether to pursue primacy for either or both programs, which will require in each case, Governor’s office approval, legislative authority, a rulemaking proposal, and ultimately, a favorable decision from EPA approving the program and granting delegation. Getting to the rulemaking stage will likely take a year or more. Stay tuned as if the process continues, there will be many opportunities for public participation.