A ‘gap in protection’: Ariz. looks for a Plan B under WOTUS

By Ariel Wittenberg | 01/28/2020 01:18 PM EST

Arizona is evaluating whether to strengthen water regulations in the face of federal rollbacks from the Trump administration that could leave 93% of the state’s stream miles unprotected by the Clean Water Act.

A view of Tres Rios Wetlands in Arizona.

A view of Tres Rios Wetlands in Arizona. docentjoyce/Flickr

Arizona is evaluating whether to strengthen water regulations in the face of federal rollbacks from the Trump administration that could leave 93% of the state’s stream miles unprotected by the Clean Water Act.

Arizona has long supported the Trump administration’s efforts to rewrite Clean Water Act jurisdiction, with Gov. Doug Ducey (R) agreeing in a 2017 letter to EPA that "the original intent of Congress was not to use the Clean Water Act as a blanket regulation to cover all waters."

Officials continued to celebrate last week when the administration finalized its Navigable Waters Protection Rule, also known as the Waters of the U.S., or WOTUS, rule, which erased federal protections for streams that only flow in response to rainfall and most wetlands without surface water connections to larger waterways.


But the rule, which won’t take effect for a few months, could have a huge impact in arid states like Arizona, where waterways are dry most of the time but can flow in torrents after winter storms.

Arizona has few of its own state-level protections for wetlands and waterways, so this fall, the Department of Environmental Quality began examining how the new Trump rule would affect the state.

The staggering statistics: Not only would the vast majority of streams no longer be federally regulated, but 99% of lakes would also lose protections.

What’s more, 98% of point-source pollution permits discharge into those waterways, meaning limits on those polluters could disappear when the federal rule changes.

"ADEQ acknowledges that the new definition creates a gap in protection for many Arizona waterways and supports developing a ‘local control approach’ at the state level to protect Arizona’s important and precious water resources," the agency wrote on its website.

EPA officials have insisted that the federal rollback will not leave millions of stream miles unprotected nationwide, insisting that changing federal rules allows states to take charge and decide which waterways are important enough to protect.

"Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states and clearly details which waters are subject to federal control under the Clean Water Act and which waters fall solely under states’ jurisdiction," EPA Administrator Andrew Wheeler told reporters last week. "Many states already have a robust network of regulations that protect their state waterways."

A senior EPA official agreed, telling reporters times have changed since the Clean Water Act was passed.

"This isn’t the 1970s and 1980s; the states have robust environmental programs," he said. "They value and cherish their resources. This is not a rule that presumes that if the federal government doesn’t regulate, there is no regulation."

EPA has previously calculated that 29 states that currently lack robust wetlands regulations "may" or are "likely" to bolster dredge and fill rules as federal oversight retreats — something critics have called an overestimate (Greenwire, Jan. 21, 2019).

Even so, new state regulatory efforts can take time.

California’s new wetlands regulations finalized just last year, for example, were the result of more than a decade of work that began in response to a pair of Supreme Court rulings issued near the turn of the century (Greenwire, Feb. 4, 2019).

Arizona regulators currently estimate that any new regulatory program would be effective by 2023 — potentially years after the Trump rollbacks take effect.

Excluded waters under proposed WOTUS rule. Graphic credit: Arizona Department of Environmental Quality

That’s alarming to Chris McVie, who sits on the board of the Coalition for Sonoran Desert Protection and said, "In the meantime, there is the potential for your mom-and-pop dry cleaner to just dump their waste wherever they see fit."

It’s also not even clear whether the state will ultimately finalize any changes and if new state protections would be comparable to those being lost under the Clean Water Act.

ADEQ spokeswoman Erin Jordan wrote in an email that there’s a limit to how much the state agency can do without approval from the state Legislature.

For example, ADEQ could decide to create water quality standards for waterways that are no longer federally protected, but creating a new permitting program to control pollution to those waterways would require lawmakers’ approval.

That means new protections are no guarantee, said McVie.

"Arizona is a state that has, historically, been knee-jerk in its abhorrence of regulation," she said.

McVie said the state’s struggle to regulate groundwater pumping as its population grows — despite widespread acknowledgement that the state’s water supply is limited — makes her believe the Legislature won’t strengthen water protections for waterways that are often dry.

"We require clean water in order to have a safe and healthy life, but how they are going to do that when they are in denial of part of the problem is going to be interesting," she said.


Already, ADEQ’s effort is seeing significant pushback from housing developers and farmers.

Arizona Farm Bureau President Stefanie Smallhouse, who called the effort "premature" because the Trump rule will likely be met with lawsuits that could delay its implementation, said she does not believe the federal rollback will actually negatively affect Arizona water quality.

She questioned ADEQ’s statistics for the number of waterways that will lose federal protections, saying many don’t count as "waterways" because they are actually dry for most of the year.

"There is just no point in regulating waterways that don’t have water," she said. "That would be the state of Arizona basically controlling land use instead of water quality."

ADEQ’s Jordan said the agency’s statistics for newly unregulated waterways were developed using currently available geospatial mapping.

But Smallhouse said she doubts them, in part because her group has asked ADEQ for maps of unprotected waterways and hasn’t seen any.

"I think what they are doing is basically trying to scare people to say this rule has been reversed and now nothing will be protected, which is just not true," she said. "They have not produced maps, so it’s difficult to know where they are coming from when they make these statements that we now have unprotected water, when they won’t show you where this unprotected water is or if it has water in it."

Smallhouse’s group supports the new WOTUS definition and believes the state should similarly only regulate waterways with permanent or intermittent flow.

She accused state regulators of "confusing the efforts of the federal government to bring more clarity to regulation."

"We support state jurisdiction over the state’s waters, but we also support clarity in the rules, which govern our clean water," she said.