ARIZONA HOUSE OF REPRESENTATIVES Fifty-sixth Legislature First Regular Session
	House: NREW DP 5-4-0-1 | 3^rd Read 31-26-3-0 Senate: NREW DP 4-3-0-0 | 3rd Read 16-3-1-0

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HB 2056: dry washes; permit program exemption

Sponsor: Representative Diaz, LD 19

Transmitted to the Governor

Overview

Declares that, notwithstanding other laws, a waterless physical feature on private property is not a water of Arizona, is exempt from the state Dredge and Fill Permit Program and is not a water of the United States under the Clean Water Act.

History

Regulating Water Quality

The term water of the state means all waters within Arizona's jurisdiction including all "perennial or intermittent streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, aquifers, springs, irrigation systems, drainage systems and other bodies or accumulations of surface, underground, natural, artificial, public or private water situated wholly or partly in or bordering on the state" (A.R.S. § 49-201). These waters may be regulated under several water quality programs administered by the Arizona Department of Environmental Quality (ADEQ), including the water quality standards and Total Maximum Daily Load program (A.R.S. §§ 49-221 and 49-232).

The Clean Water Act is designed to regulate discharges into "waters of the United States" with the intent of protecting and restoring the quality of these waters. Since this law does not define "waters of the United States" (33 U.S.C. § 1362), the Army Corps of Engineers and Environmental Protection Agency, which jointly implement this law, have defined this term in their respective regulations (33 U.S.C. § 1251 et seq.). Since initial adoption in the late 1980s, these regulations have been subject to repeated revision and litigation. The most recent revision to the definition of "waters of the United States" (which becomes effected on March 20, 2023) excludes swales and erosional features, such as gullies and small washes, that are characterized by low volume, infrequent or short duration flow (88 Federal Register 3144).

State Dredge and Fill Permit Program

In 2018, the Legislature created a state Dredge and Fill Permit program so that ADEQ could assume primacy for the federal program authorized by Section 404 of the Clean Water Act. However, ADEQ never sought EPA approval of this state program which means that the program's statutes will be repealed on August 1, 2023 (Laws 2018, Chapter 225). Any dredge and fill permits will then need to be obtained through the U.S. Army Corps of Engineers (33 U.S.C. § 1344).

Provisions

1. Declares that, notwithstanding other laws, the following features are excluded as a water of this State, WOTUS or protected surface waters and from the state Dredge and Fill Permit Program:

a) Dry wash;

b) Arroyo;

c) Swale;

d) Gully;

e) Rill; or

f) A similar erosional feature characterized by low volume, infrequent or short duration flows. (Sec. 2)

2. Makes technical and conforming changes. (Sec. 1)

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4.

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6.                   HB 2056

7. Initials PAB           Page 0 Transmitted

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