ARIZONA
HOUSE OF REPRESENTATIVES
|
SB 1493: environmental quality; dredge, fill permits |
||
|
PRIME SPONSOR: Senator Griffin, LD 14 BILL STATUS: Energy, Environment & Natural Resources
|
|
|
Relating to primacy of the Dredge and Fill Permit
Program.
Provisions
1. Allows the ADEQ Director to adopt a Dredge and Fill Permit Program by rule for the discharge of dredged or fill material into navigable waters. (Sec. 4, 6)
2. Requires ADEQ to use Water Quality Fee Fund monies to implement and administer the Dredge and Fill Permit Program, including review and analysis for issuing jurisdictional determinations. (Sec. 5)
3. Specifies the Dredge and Fill Permit Program must be consistent with and no more stringent than the CWA, and include a permitting process. (Sec. 6)
4. Requires the rules to:
a. provide for issuing, authorizing, denying, modifying, suspending or revoking individual, general and emergency permits;
b. establish permit conditions to ensure compliance with the CWA;
c. establish maintenance, monitoring, sampling, reporting, recordkeeping and other permitting requirements necessary to maintain primary enforcement or to determine compliance;
d. establish circumstances and activities that do not require or that prohibit a permit, and exempt activities and the conditions under which those activities are exempt;
e. establish public notice and comment procedures;
f. provide other provisions necessary to maintain state primary enforcement; and
g. establish procedures for the ADEQ Director to make jurisdictional determinations that:
i. are in writing and identified as either preliminary of approved; and
ii. do not include determinations that a particular activity requires a permit. (Sec. 6)
5. Declares approved jurisdictional determinations are appealable agency actions by an affected party. (Sec. 6)
6. Asserts preliminary jurisdictional determinations are not appealable agency actions. (Sec. 6)
7. Provides that the right to appeal is not extended to adjacent landowners or third parties not affected by a jurisdictional determination. (Sec. 6)
8. Requires ADEQ, on request by an affected party, to:
a. recognize and adopt existing approved jurisdictional determinations if the federal definition of navigable waters has not changed since approval; and
b. renew approved jurisdictional determinations on the same terms unless:
i. physical changes have occurred that are likely to alter the determination;
ii. the federal definition of navigable waters has changed since approval; and
iii. additional field data show the original determination was based on inaccurate data and the new data warrants a revision. (Sec. 6)
9. Prohibits a person from discharging dredged or fill materials unless the discharge is:
a. exempt under federal law or ADEQ rule;
b. in compliance with the Dredge and Fill Permit Program; or
c. pursuant to a permit issued or authorized by the Corps until a permit is issued by ADEQ. (Sec. 6)
10. Allows the ADEQ Director to issue compliance orders and the county attorney or the Attorney General to request a temporary restraining order, a preliminary or permanent injunction, or any other relief necessary to protect public health. (Sec. 7, 8)
11. Subjects a person who violates any adopted rule, permit, discharge limitation or order issued to a civil penalty of not more than $25,000 per day, per violation.
a. Outlines factors the court must consider in determining the amount of a civil penalty. (Sec. 8)
12. Declares it is unlawful for any person to knowingly (class 6 felony) or recklessly (class 5 felony):
a. discharge without a permit or proper authority;
b. fail to monitor, sample or report discharges as required;
c. violate a discharge limitation or standard;
d. alter, modify or destroy any required monitoring device, sampling method, analytical method or test result;
e. fail to install, maintain, operate or repair any required monitoring device;
f. bypass or divert waste streams from the treatment works resulting in a discharge without authorization; or
g. violate an effective compliance order issued.
i. Fines for felonies are up to $150,000 per charge for persons, and up to $1,000,000 per charge for enterprises. (Sec. 9)
13. Subjects a person to a class 1 misdemeanor (6 months jail/up to $2,500 fines plus surcharges) who, acting with criminal negligence, violates:
a. a condition of a permit; or
b. any applicable standard, limitation, filing or reporting requirement. (Sec. 9)
14. Prohibits ADEQ from recovering penalties for violations of both an APP and Dredge and Fill Permit based on the same act or omission. (Sec. 8)
15. Requires the ADEQ Director to establish, by rule, standards and criteria for the use of all types of compensatory mitigation.
a. Includes on-site and off-site permittee-responsible mitigation, mitigation banks and in-lieu fee mitigation. (Sec. 6)
16. Permits the use of mitigation banks and in-lieu fee programs to:
a. compensate for unavoidable impacts to navigable waters authorized by general and individual permits; and
b. satisfy requirements arising from an enforcement action. (Sec. 6)
17. Expands the Game and Fish In-Lieu Fee Program Restoration Endowment Trust beneficiaries to include in-lieu fee projects sponsored by AZGFD pursuant to the Dredge and Fill Permit Program. (Sec. 1)
18. Requires state agencies to pay the following for services provided under the Dredge and Fill Permit Program:
a. the fees established by ADEQ; or
b. the reasonable cost of services provided by ADEQ pursuant to an interagency service agreement. (Sec. 3, 4)
19. Requires ADEQ to negotiate with the Corps to ensure continued processing of as many pending permit applications and jurisdictional determination requests before ADEQ officially assumes the Dredge and Fill Permit Program. (Sec. 10)
20. Exempts the Dredge and Fill Permit Program from the statutory requirement that new legislative programs include a 10-year expiration date. (Sec. 6)
21. Defines terms. (Sec. 6)
22. Contains a conditional repeal date of August 1, 2023, if the Dredge and Fill Permit Program is not approved by the EPA.
a. Requires the ADEQ Director to notify Legislative Council in writing of the date the condition was or was not met by September 1, 2023. (Sec. 11)
23. Makes technical and conforming changes. (Sec. 1-4, 7-9)
Current Law
Under Section 404 of the CWA, the discharge of dredged or fill material into navigable waters, which are also considered Waters of the U.S., is prohibited unless authorized by permit. Waters of the U.S. include: 1) waters currently used, previously used or may be susceptible to use in interstate or foreign commerce; 2) all interstate waters; and 3) all other waters including intrastate lakes, rivers and streams (40 C.F.R. § 230.3).
All applicable steps must be taken to avoid and minimize impacts to aquatic resources if there is a proposed discharge. Compensatory mitigation is required for unavoidable impacts to replace the loss of wetland, stream or other aquatic resource functions (33 CFR 332.8.i). Laws 2017, Chapter 187 established the Game and Fish In-Lieu Fee Program Restoration Endowment Trust Fund to fulfill AZGFD's obligations as an in-lieu fee sponsor under the CWA. The beneficiaries of the Trust are the in-lieu fee projects under the AZGFD (A.R.S § 17-265).
The Water Quality Fee Fund consists of legislative appropriations and fees collected by water quality protection programs. Fund monies must be used for: 1) the issuance of APPs; 2) APP registration fee procedures; 3) dry well registration fee procedures; 4) technical review fee procedures; 5) inspection fee procedures; 6) the issuance of permits under the Arizona Pollutant Discharge Elimination System Program; and 7) operator certification (A.R.S. § 49-210).
---------- DOCUMENT FOOTER ---------
Fifty-third Legislature SB 1493
Second Regular Session Version 1: Energy, Environment & Natural Resources
---------- DOCUMENT FOOTER ---------
