State could take over program for water protection — but should it?

Arizona is looking at taking over a federal program intended to protect rivers, streams and wetlands from construction projects, road-building and mining, a change conservation groups say will likely translate into a significant weakening of environmental protections.

In Arizona and most other states, the U.S. Army Corps of Engineers issues dredge-and-fill permits under the Clean Water Act. But a bill passed by the Arizona Legislature this year

would allow the state Department of Environmental Quality to take over those responsibilities.

The legislation, which was signed by Gov. Doug Ducey in April, says the agency may establish a state-run program for handling the permits, which developers and mining companies need to build in desert washes or near streams and wetlands.

Conservation groups are voicing concerns that the state lacks the funding and expertise to properly run the permit program.

“Because Arizona is so dry, our rivers, our streams, the springs, the washes, they’re even more important,” said Sandy Bahr, director of the Sierra Club’s Arizona chapter. “They sustain life in the desert. And if we don’t protect them, then we’re going to lose a lot more wildlife species, we’re going to lose a lot more plants, and the quality of life in our communities will suffer as well.

“We think that the program should stay with the Army Corps of Engineers and that the state should focus on doing the best job possible with the programs that it has.”

Bahr and 12 other representatives of environmental groups wrote to the Department of Environmental Quality on July 13 to register their concerns about the proposal. In the letter, they pointed out that while the new legislation, Senate Bill 1493, enables the state to take on the new role, it doesn’t require it.

They said putting the state in charge of the permits “will come at a high price.” When Virginia studied the feasibility of taking over the program, they wrote, officials there determined it would cost $18 million over the first five years and $3.4 million thereafter.

The groups said Arizona’s public-input process should include “an in-depth look at the economics of the decision,” including both the immediate and longterm costs.

The permit program is known as Section 404, the provision of the Clean Water Act that regulates the discharge of dredged or fill material into rivers, streams or wetlands. The program is jointly administered in most states by the U.S. Environmental Protection Agency and the Army Corps of Engineers.

Only two states have received federal approval to run their own Section 404 permit programs: Michigan and New Jersey.

Michigan has been doing so since 1984, funding the program through permit fees as well as the state general fund. New Jersey assumed responsibility for granting permits in 1994 and charges fees for reviewing applications.

In Arizona, the Corps of Engineers has 10 full-time employees who work on Section 404 permits.

Conservationists said in their letter to the state that it’s problematic that the Department of Environmental Quality has little funding available to take on the task. They said paying for the program entirely with fees, as is proposed, would create an incentive for moving quickly to grant permits rather than conducting thorough reviews.

“Of grave concern is the possible outcome that because ADEQ intends to fund the program through permitting fees, the agency will become motivated to quickly issue permits that would otherwise require careful consideration,” they wrote. “State assumption of the 404 program would be long, arduous, costly and unlikely to achieve the protections of the federal program.”

The conservation groups said another weakness in putting the state in charge is that while major projects now must go through a review under the National Environmental Policy Act, Arizona has no comparable law requiring assessments of environmental impacts.

Arizona officials already manage several other programs under the federal Clean Water Act, including developing water quality standards, monitoring water quality in streams and lakes, and handling permits that regulate discharges of pollutants into waterways.

Misael Cabrera, director of the ADEQ, said the language in the Clean Water Act shows that Congress’ original intent was for states to administer the dredgeand-fill permits.

“The only thing the legislation did is allow us to apply to the EPA. The EPA has to approve of our entire program design before we could implement it,” Cabrera said. “The reason why we want to explore it and pursue it is because we think that we can deliver the same environmental protection to waters of the U.S. as the federal government can, but we can do it faster and better.”

He said there are roughly 600 permits issued per year in the program, and it usually takes well over a year for an applicant to get a permit.

Asked about the concerns raised by environmental groups, Cabrera said the agency welcomes input and involvement from all stakeholders. After several public meetings, the agency is now forming work groups to focus on topics such as protections under the Endangered Species Act, how the fees would be determined and how the permit process would work.

“All those groups have been invited and will continue to be invited into our stakeholder process. I would say that there are some folks who simply think that the federal government can do everything better than the states can, and I disagree,” Cabrera said.

“We want to design the process so that it’s faster while maintaining the same substantive environmental protection,” Cabrera said. “If we find that we are unable to do so, then we will not pursue an application.”

The department plans to prepare a draft “road map” proposal by the end of the year.

The Republican-majority Legislature approved the legislation after it was supported by business groups, developers, farming associations and mining companies.

“Oftentimes, when you get into the federal-government level, it can take quite a long time to get through that permitting process. The state process seems to go a little bit quicker,” said Mike Huckins, vice president of public affairs for the Greater Phoenix Chamber of Commerce. “We look forward to working with the department to get this implemented to the benefit of our members and the protection of the environment, and hopefully all will go well.”

The push for the state to handle the permits comes as Ducey, a former business executive, touts his Lean Initiative as an effort to “reduce waste” and streamline state programs.

The Home Builders Association of Central Arizona supported the legislation and says speeding up the issuance of permits would be good.

“DEQ is faster than the federal government,” said Spencer Kamps, the association’s vice president of legislative affairs. “No matter what the time frame ultimately is, it’s going to be better than the Corps of Engineers.”

Kamps said environmental protections will need to remain in place to meet federal requirements.

“At the end of the day, if this program is less stringent than the federal standard, EPA will not approve it,” Kamps said.

In Washington, though, President Donald Trump’s administration has been focusing on rolling back environmental regulations and has encouraged states to take over these sorts of duties.

Some conservationists say turning over responsibility to the state agency only makes sense if the real purpose is to help industry get around environmental protections.

“This is a calculated, cold-blooded attempt to evade the laws that protect public health and wildlife,” said Randy Serraglio of the Center for Biological Diversity. He said he thinks DEQ “now just pretty much functions as a rubber stamp for industry.”

“They’ve been starved of funding and staff for years, and this is something ideological,” Serraglio said. “It’ll operate the way they operate with other aspects of environmental regulation. They’re just going to issue rubberstamp permits. They’re not going to conduct real analysis.”

One controversial project that’s now awaiting a federal permit is the proposed Rosemont copper mine in southern Arizona. Another is the Villages at Vigneto, a proposed development that would bring about 28,000 new homes to the desert on the outskirts of Benson.

The decision on the Rosemont Mine will be made by the Corps of Engineers before the proposed handover to state authority, Cabrera said, “and we have no plans to revisit permit issuances or permit denials from the Corps if we assume the program.”

Tricia Gerrodette, of the group Friends of the San Pedro River, has been fighting against the Villages at Vigneto for years, saying the planned groundwater pumping would harm the San Pedro River. She said she presumes that for state officials and developers, this project stands out as an example of why they want the state to take over.

“It’s an end run around environmental protections and regulation,” Gerrodette said. “I hope that they decide it looks too expensive and beyond the state’s capacity to do a good job.”

Past state takeovers

The federal government has dealt with complicated, contentious cases in Arizona in the past.

In 2008, an Arizona developer and a contractor agreed to settle alleged violations of the Clean Water Act after they bulldozed, filled and diverted a stretch of the Santa Cruz River without a permit. The EPA said at the time that developer George Johnson, his companies and a contractor would pay a combined $1.25 million penalty.

The idea of moving to state oversight of Section 404 of the Clean Water Act has been talked about for years in Arizona, said Stephen Owens, who was director of the Department of Environmental Quality under Democratic Gov. Janet Napolitano from 2003 to 2009.

Owens recalled that when he arrived at the agency, it had just taken over another permitting program from the federal government: the National Pollutant Discharge Elimination System, which focuses on regulating discharges of pollutants into streams.

The biggest challenge at that time, Owens said, was funding because the Legislature didn’t appropriate any money or give the agency the power to collect fees — at least at first. Lawmakers years later authorized the agency to start charging fees for the permits, and Owens said he thinks that program is now working well.

Owens also worked for the EPA during President Barack Obama’s administration as the assistant administrator for chemical safety and pollution prevention. He said he thinks it makes sense for state officials to look at taking over responsibility for dredge-and-fill permits.

“As a general matter, programs like this are better implemented by the states than by the federal government,” Owens said. “And if the program is implemented properly, then it can result in strong environmental protections.”

He said people have raised legitimate concerns that the agency is underfunded and understaffed. To make it work, he said, adequate funding and staff would be critical.

“This is probably one of the most contentious water-quality regulatory programs that people deal with on a regular basis,” Owens said. “And if the state is going to take it over, it needs to be prepared.”