Assigned to NREW AS
PASSED BY COMMITTEE
Assigned to NREW AS
PASSED BY COMMITTEE
ARIZONA STATE SENATE
Fifty-Third Legislature, Second Regular Session
AMENDED
environmental quality; dredge, fill permits
Purpose
Allows the Department of Environmental Quality (ADEQ) to adopt a Dredge and Fill Permit Program and outlines permissions, prohibitions and mitigation requirements relating to dredging and filling into navigable waters.
Background
The United States Environmental Protection Agency (EPA) issues permits under the Clean Water Act Section 404 Dredge and Fill Permit Program for the discharge of dredged or fill materials into navigable waters, which are also considered waters of the United States (Clean Water Act § 404). The current definition of waters of the United States includes: 1) waters that are 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).
The Game and Fish In-Lieu Fee Program Restoration Endowment Trust Fund (G&F In-Lieu Fee Fund) was established to fulfill the Game and Fish Department's obligation as an in-lieu fee sponsor to mitigate and replace functions of aquatic resources degraded or destroyed by pollutants discharged into navigable waters. The current beneficiaries of the G&F In-Lieu Fee Fund are dredge and fill projects sponsored under the Clean Water Act (A.R.S. § 17-265).
The Water Quality Fee Fund (WQFF) consists of monies appropriated by the Legislature and various fees collected by ADEQ. Monies in the WQFF are currently used for: 1) issuing APPs; 2) APP registration fee procedures; 3) dry well registration fee procedures; 4) technical review fee procedures; 5) inspection fee procedures; 6) issuing permits under the Arizona Pollutant Discharge Elimination System Program; and 7) operator certification (A.R.S. § 49-210).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Allows the Director of ADEQ to adopt a Dredge and Fill Permit Program for the discharge of dredged or fill material into navigable waters in Arizona.
2. Requires the Dredge and Fill Permit Program to be consistent with and no more stringent than the Clean Water Act Section 404 Dredge and Fill Program.
3. Requires the Director of ADEQ to adopt rules that:
a) provide for issuing, authorizing, denying, modifying, suspending or revoking individual, general and emergency Dredge and Fill Permits;
b) establish permit conditions in compliance with Section 404 of the Clean Water Act;
c) establish maintenance, monitoring, sampling, reporting, recordkeeping and other permitting requirements to maintain primary enforcement responsibility or to determine compliance;
d) in accordance with federal law, establish:
i. circumstances and activities that do not require a Dredge or Fill Permit;
ii. activities that are exempt from the requirements for any discharge or fill material that may result from those activities, and the conditions under which those activities are exempt; and
iii. circumstances that a Dredge and Fill Permit is not allowed;
e) establish public notice and comment procedures as necessary to maintain primacy and as the Director of ADEQ deems appropriate; and
f) provide for any other provisions necessary to maintain state primary enforcement responsibility under Clean Water Act Section 404 Dredge and Fill law.
4. Outlines various permissions for the Director of ADEQ regarding the Dredge and Fill Permit Program.
5. Requires ADEQ to use monies from the WQFF to implement and administer the Dredge and Fill Permit Program, which includes review and analysis for issuing jurisdictional determinations.
6. Requires ADEQ to negotiate with the United States Army Corp of Engineers, during the process of establishing and assuming state jurisdiction over the Dredge and Fill Permit Program, to ensure that the United States Army Corp of Engineers will continue to process applications and for permits and requests for jurisdictional determinations.
Prohibitions & Violations
7. Prohibits, after Arizona has been granted authority to administer the Dredge and Fill Permit Program, a person from discharging dredged or fill material unless the discharge is:
a) exempt under federal law or ADEQ rules;
b) in conformance with the Dredge and Fill Permit Program; or
c) in conformance with a permit issued or authorized by the United States Army Corps of Engineers until the Dredge and Fill Permit takes effect.
8. Deems it unlawful for a person subject to a Dredge and Fill Permit to knowingly or recklessly:
a) discharge without a permit or appropriate authority;
b) fail to monitor, sample or report discharges;
c) violate a discharge limitation or standard;
d) alter, modify or destroy any monitoring device, sampling method, analytical method or test result in order to render the device or method inaccurate;
e) fail to maintain, operate, repair or install any required monitoring device; and
f) violate an effective compliance order issued for violations.
9. Subjects an individual to a class 1 misdemeanor if the individual violates:
a) any condition of the Dredge and Fill Permit; or
b) applicable standards, limitations, filing or reporting requirements.
10. Outlines factors the court must consider when determining the amount of a civil penalty.
11. Prohibits ADEQ from recovering two penalties based on the same violation for permittees who have a Dredge and Fill Permit and an Aquifer Protection Permit.
Jurisdictional Determinations
12. Stipulates that approved jurisdictional determinations are appealable agency actions which can be appealed by a party affected by a determination.
13. Prohibits adjacent landowners or third parties not affected by a jurisdictional determination from appealing the determinations.
14. Requires ADEQ, upon assuming authority to administer the Dredge and Fill Permit Program, to:
a) recognize and adopt any existing approved jurisdictional determinations if the federal definition of navigable waters has not changed since the issuance of the approved determinations; and
b) renew approved jurisdictional determinations that were originally issued by the United States Army Corps of Engineers unless:
i. physical changes have occurred affecting the determination;
ii. the federal definition of navigable waters has changed since the issuance of the determination; or
iii. additional field data show that the original determination was based on inaccurate data and the new data warrant a revision.
Mitigation
15. Defines compensatory mitigation as various activities for the purposes of offsetting unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimizations have been achieved.
16. Requires the Director of ADEQ to establish standards and criteria for the use of all types of compensatory mitigation to offset unavoidable impacts to navigable waters authorized by Dredge and Fill Permits.
17. Allows mitigation banks and in-lieu fee programs to be used to:
a) compensate for unavoidable impacts to navigable waters, including after the fact permits; and
b) satisfy requirements arising from an enforcement action.
18. Expands qualifying entities of the G&F In-Lieu Fee Fund to include entities that receive a Dredge and Fill Permit.
Miscellaneous
19. Requires, for services provided under the Dredge and Fill Permit Program, state agencies to pay:
a) the fees established by ADEQ; or
b) the reasonable cost of services provided by ADEQ pursuant to an interagency service agreement.
20. Exempts the Dredge and Fill Permit Program from the statutory requirement that a new program include an expiration date within 10 years.
21. Defines terms.
22. Repeals the provisions of this legislation if the Dredge and Fill Permit Program is not approved by the EPA by August 1, 2023.
23. Requires the Director of ADEQ, by September 1, 2023, to notify the Director of the Arizona Legislative Council in writing of the date on which the EPA approved, or did not approve, the Dredge and Fill Permit Program.
24. Makes technical and conforming changes.
25. Becomes effective on the general effective date.
Amendments Adopted by Committee
1. Replaces definitions.
2. Outlines jurisdictional determination requirements.
3. Makes technical and conforming changes.
Senate Action
NREW 2/05/18 DPA 5-3-0
Prepared by Senate Research
February 6, 2018
KK/JN/lat