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Arizona Supports Waters Of U.S. Rule Change, But Wants To Delay Putting It In Place

The state of Arizona supports a proposed federal rule change redefining what’s considered a “Water of the United States,” but is asking the Environmental Protection Agency and the Army Corps of Engineers to hold off on putting the rule in place.

The EPA and Army Corps are proposing to put so-called ephemeral streams clearly under state authority, with no federal permits needed for mining or development. Ephemeral streams run because of rain or snow.

A letter signed by seven Arizona state departments and submitted to the federal government on April 15 outlines the reasons why the state’s executive branch is in favor of the rule change.

The signers argue the current rule, written under the Obama Administration to include ephemeral streams, would lower the value of public and private lands.

“Assignment of jurisdictional status to ephemeral waterways under the current rule ... can strip a parcel of sufficient contiguous farmable or developable land,” the letter states. It specifically mentions state trust land, which it says is about half of the non-federal or tribal land that can be used for future growth.

The Arizona Department of Environmental Quality (ADEQ) declined an interview on the official state response.

Democrats in the state House, meanwhile, sent their own letter to the EPA as part of the public comment on the rule revision.

In an interview, Representative Kirsten Engel expressed skepticism Arizona would install an oversight regime equivalent to federal coverage.

“Arizona has not gone forward to develop a protection for waters that would be excluded” under the proposed Clean Water Act rule, she said. Engel is concerned because she says ephemeral waters provide riparian habitat, contribute to larger waterways, and can affect drinking water sources.

She also questioned the wisdom of Arizona funding a state regulatory regime through fees levied on permit applicants when the federal government currently administers (and pays for) the permit program.

“If this rule goes through,” she said, “we could be losing the funding as well, because the funding comes with the jurisdiction.”

Administering Arizona permits under Section 404 of the Clean Water Act, which oversees putting dredged of fill material into the waters of the U.S., cost the Army Corps of Engineers about $2 million in fiscal year 2018. That’s according to an ADEQ white paper analyzing Arizona’s push to take over management of Section 404, which is separate from the Trump administration changing the definition of Waters of the U.S.

In their letter to the feds, the Arizona department heads asked for implementation of the new definition to be delayed, because the state needs time to pass its own program to protect the quality of surface water.

They also state about 94 percent of Arizona’s streams are ephemeral or intermittent, another category generally defined as streams that run seasonally.

The signers of the state’s letter include Misael Cabrera, director of the Department of Environmental Quality; Lisa Atkins, commissioner of the Land Department; Robert Broscheid, director of Parks and Trails; Ty Gray, director of the Game and Fish Department; John Halikowski, director of the Department of Transportation; Mark Killian, director of the Department of Agriculture; and Sandra Watson, president of the Commerce Authority.

This story is part of Elemental: Covering Sustainability, a new multimedia collaboration between Cronkite News, Arizona PBS, KJZZ, KPCC, Rocky Mountain PBS and PBS SoCal.

Bret Jaspers was a senior field correspondent at KJZZ from 2017 to 2020.