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Environment & Energy Report

Arizona Prepares to Lose Federal Water Protections

Nov. 13, 2019, 12:54 AM

The vast majority of Arizona waters now regulated by the state under the federal Clean Water Act could be excluded from protection under the Trump administration’s narrowed definitions of federal waters, according to state environmental officials.

The Arizona Department of Environmental Quality is taking initial steps to launch a state program to oversee waters excluded from the Trump administration’s revised definition of what it considers Waters of the U.S. That definition determines which waters fall under federal oversight.

The Obama administration’s Waters of the U.S., or WOTUS, rule, set a broad definition of which water bodies are and are not eligible for federal anti-pollution protections. The Trump administration rolled that back last month (RIN: 2040-AF74), and wants to define protected waters much more narrowly (RIN: 2040-AF75).

An estimated 85% to 93% of the waters Arizona knows of and regulates under the Clean Water Act would no longer fall under the law if the expected revised definition is implemented, said Trevor Baggiore, Arizona Department of Environmental Quality water quality division director, at a Nov. 12 meeting in Phoenix for public feedback on the changes. Arizona leaders have supported the narrower WOTUS definition as a chance to give the state more authority to protect its waters.

‘Chance to Make a Difference’

A state program needs to address federal changes that will leave “vitally important” waters unprotected, Baggiore said. Those include canals used for drinking water, urban lakes, and intermittent streams.

“This is our chance to make a difference for the generations that follow us,” he said.

Other impacts of a revised WOTUS definition are still unknown. The Trump administration says it’s impossible to say how many water bodies would lose federal protection under its proposal because no one has done a comprehensive survey tallying all of the water bodies in the country. The Obama administration did attempt to do this prior to its 2015 rulemaking, but senior Trump EPA officials have said this was scientifically flawed and should not be relied on.

The timing of the new definition could pose challenges for Arizona. Department leaders expect the changes to take effect in early 2020 while Arizona likely wouldn’t have its own regulatory program in place for several years.

Arizona is looking at liability issues if the WOTUS changes in the meantime lead to impacts on neighboring states or tribal nations that share bodies of water, Baggiore said.

—With assistance from David Schultz

To contact the reporter on this story: Brenna Goth in Phoenix at bgoth@bloomberglaw.com