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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
AMENDED
remedial groundwater incentive; brackish groundwater
Purpose
Defines brackish groundwater as groundwater containing total dissolved solids between 1,000 and 10,000 milligrams per liter and deems the use of the outlined hazardous substances and brackish groundwater as consistent with the management goal of an active management area (AMA) if outlined conditions apply.
Background
For the purpose of determining whether an assured water supply exists, the Director of the Arizona Department of Water Resources (ADWR) must find that a groundwater replenishment district member's projected use is consistent with achieving the management goal for the AMA if: 1) the land for which a certificate or the city, town or private water company for which a designation is sought is in a groundwater replenishment district; 2) the Director of ADWR has made either a preliminary determination that has not expired or a final determination that the district's plan for operation is consistent with achieving the management goal; and 3) the master replenishment account does not have a debit balance that exceeds the cumulative amount of the district's debits accrued during the four preceding calendar years (A.R.S. § 45-576.01).
Hazardous substance includes: 1) any substance designated by outlined statute and the Federal Clean Water Act; 2) any element, compound, mixture, solution or substance designated pursuant to section 102 of CERCLA; 3) any hazardous air pollutant listed by the Federal Clean Air Act; 4) any imminently hazardous chemical substance or mixture with respect to which the administrator has taken action pursuant to the Federal Toxic Substances Control Act; 5) and any substance that the Director of ADWR, by rule, either designates as a hazardous substance following the designation of the substance by an outlined administrator or designates as a hazardous substance on the basis of a determination that such substance represents an imminent and substantial endangerment to public health (A.R.S. § 49-201).
Inert material means broken concrete, asphaltic pavement, manufactured asbestos-containing products, brick, rock, gravel, sand and soil. Inert material also includes material that, when subjected to a water leach test that is designed to approximate natural infiltrating waters, will not leach substances in concentrations that exceed numeric aquifer water quality standards, including overburden and wall rock that is not acid generating, taking into consideration acid neutralization potential, and that has not and will not be subject to mine leaching operations (A.R.S. § 49-201).
Remedial actions means actions that are reasonable, necessary, cost-effective and technically feasible in the event of the release or threat of release of hazardous substances into the environment, such as actions as may be necessary to investigate, monitor, assess and evaluate such release or threat of release, actions of remediation, removal or disposal of hazardous substances or taking such actions as may be necessary to prevent, minimize or mitigate damage to the public health or welfare or to the environment that may otherwise result form a release or threat of release of a hazardous substance. Remedial actions include the use of biostimulation with indigenous and bioaugmentation using microbes that are nonpathogenic, that are nonopportunistic and that are naturally occurring (A.R.S. § 49-281).
The Arizona Department of Environmental Quality (ADEQ) may conduct a remedial investigation and feasibility study of a scored site or portion of the site to assess conditions on the site or portion of the site and to evaluate alternative potential remedies to the extent necessary to select a final remedy in a manner consistent with adopted rules and procedures. After evaluating the site or portion of a site, the Director of ADEQ must prepare a proposed remedial action plan and issue notice of the proposed plan to pursuant to the community involvement plan. A copy of the proposed remedial action plan must also be sent to each person on the preliminary list of potentially responsible parties with a notice that includes the outlined required information and that also must: 1) notify the recipients of the opportunity to propose alternative methods of allocation of liability among responsible parties; 2) provide a preliminary list of potentially responsible parties and summarize the basis for each party's liability, if the Director of ADEQ determines that cost recovery may be appropriate; 3) advise the recipient that all information known to the recipient regarding a person who may be liable and any facility within the site from which a release of hazardous substance may have occurred must be provided to ADEQ within a reasonable period set by ADEQ, but at least within 60 days; 4) within 90 days after the end of the public comment period, if ADEQ has received sufficient information identifying additional persons who may be responsible or facilities where a release of a hazardous substance may have occurred, the Director of ADEQ must investigate that person or facility within the site or decline to investigate and notify the person providing the information in writing of the decision (A.R.S. §§ 49-287.03 and 49-287.04).
The Joint Legislative Budget Committee (JLBC) fiscal note on H.B. 2186 estimates an increase in the workload of the Arizona Department of Water Resources (ADWR), but states that the magnitude of the impact cannot be determined in advance. JLBC notes that the increase in workload would depend on the number of applicants in AMAs that propose to use brackish groundwater and that H.B. 2186 would require ADWR to establish new rules, change operational processes and update information systems to separately track brackish groundwater approvals, plans and annual reports as well as differentiate brackish groundwater withdrawals from regular groundwater withdrawals. The JLBC fiscal note states that the new rule and data requirements would increase ADWR's administrative costs, but that ADWR has not yet provided an estimate of the fiscal impact of H.B. 2186 (JLBC fiscal note).
Provisions
1. Deems the use of brackish groundwater by a person with or applying for a certificate or designation of assured water supply during a year as consistent with the management goal of the AMA in which the remedial groundwater is withdrawn and is excluded when determining compliance with the management goal requirements if:
a) the Director of ADWR determines that the brackish groundwater use is consistent with the management goal;
b) the person complies with outlined metering and reporting requirements;
c) the Director of ADWR approves the brackish groundwater plan for the proposed withdrawal and use;
d) the person agrees to desalinate the brackish groundwater so that the water no longer meets the definition of brackish groundwater and complies with all applicable potable drinking water standards; and
e) if the brackish groundwater will be withdrawn from an exemption area or that is located within the boundaries of an irrigation district, the person uses or otherwise returns the treated brackish groundwater to the same exemption area or service area of an irrigation district from which the brackish groundwater was originally withdrawn.
2. Allows a person with or applying for a certificate or designation of assured water supply that is using or proposing to use brackish groundwater to apply to the Director of ADWR for a determination that the person's use of the remedial groundwater is consistent with the management goal of the AMA by submitting an application on a form provided by the Director of ADWR.
3. Requires the Director of ADWR, if the Director approves an application for an approved brackish groundwater plan, to calculate the annual amount of brackish groundwater use that is deemed consistent with the management goal.
4. Requires the Director of ADWR to establish rules;
a) establishing a simplified application process to determine that brackish groundwater use is consistent with the management goals of an AMA;
b) outlining the timeline for review for a submitted application; and
c) outlining the formulation to calculate, increase or decrease the annual authorized volume that can be withdrawn.
5. Requires a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw brackish groundwater that is or has been determined to be consistent with the management goal to:
a) meter the brackish groundwater withdrawals separately from groundwater withdrawn pursuant to another groundwater withdrawal authority; and
b) include in its annual reports the amount of brackish groundwater withdrawn during the reporting year that is consistent with the management goal and the purposes for which the brackish groundwater was used.
6. Requires a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw or use brackish groundwater and is deemed consistent with the management goals of an AMA to provide, at least 120 days before commencement of the withdrawals or use or 120 days after the general effective date, whichever is later, written notice to the Director of ADWR of:
a) the annual volume of brackish groundwater to be withdrawn from each well pursuant to the approved brackish groundwater plan;
b) the total amount of brackish groundwater that is located in the relevant area from which the annual authorized volume of brackish groundwater will be withdrawn;
c) the time period in which brackish groundwater will be withdrawn and used;
d) the anticipated or actual commencement date of withdrawals or use;
e) the purpose for which the brackish groundwater will be used;
f) the person with or applying for a certificate or designation of assured water supply to which the brackish groundwater will be pledged; and
g) the name and telephone number that the Arizona Department of Water Resources may contact regarding the withdrawal or use.
7. Requires the use of up to an aggregate of 65,000 acre-feet of groundwater withdrawn each calendar year within all AMAs to approved remedial action projects to be considered consistent with the management goal of the AMA, except for groundwater withdrawn to provide an alternative water supply.
8. Requires the use of an amount of groundwater withdrawn pursuant to approved remedial action projects in excess of the aggregate volume of 65,000 acre-feet of groundwater to be considered consistent with the management goal of an AMA, except for groundwater withdrawn to provide an alternative water supply.
9. Allows a municipal water provider that proposes to use groundwater withdrawn pursuant to an approved remedial action project and that wishes the Director of ADWR to determine that the use of some or all of the municipal provider's projected groundwater withdrawals are consistent with the management goal to apply to the Director of ADWR for a determination.
10. Prohibits the amount of groundwater for which the use is determined to be consistent with he management goal from exceeding the amount that the municipal provider is legally obligated to withdraw or use.
11. Prohibits the aggregate volume authorized by the Director of ADWR from exceeding 65,000 acre-feet in any calendar year.
12. Requires the Director of ADWR, by January 1, 2025, to amend outlined adopted rules to carry out requirements related to withdrawing water pursuant to an approved remedial action project.
13. Requires the Director of ADWR, before the amendment of the rules, to treat any groundwater withdrawn pursuant to an approved remedial action project issued after the general effective date as consistent with the management goal.
14. Prohibits annual remediated groundwater withdrawals of 250 acre-feet or less that are withdrawn pursuant to an approved remedial action plan under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Water Quality Assurance Revolving Fund Program or other applicable law from being debited against the water provider's assured water supply mined groundwater account and from being subject to a replenishment obligation, except for groundwater withdrawn to provide an alternative water supply.
15. Requires an annual user of 250 acre-feet or less of remediated groundwater to notify the Director of ADWR of compliance with the exemption for alternative water supply.
16. Specifies that uses of groundwater withdrawn to provide an alternative water supply do not apply in calculating the prescribed 65,000 acre-feet per year total.
17. Requires a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw remedial groundwater that is or has been determined to be consistent with the management goal to meter the remedial groundwater withdrawals separately from groundwater withdrawn pursuant to another groundwater withdrawal authority.
18. Requires a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw remedial groundwater that is or has been determined to be consistent with the management goal to include, in the filed reports, the amount of remedial groundwater withdrawn during the reporting year that is consistent with the management goal and the purposes for which the remedial groundwater was used.
19. Requires a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw or use remedial groundwater that is or has been determined to be consistent with the management goal to, at least 120 days before commencement of the withdrawals or use or 120 days after the general effective date, whichever is later, provide written notice to the Director of ADWR of:
a) the annual volume of remedial groundwater to be withdrawn from each well pursuant to the approved remedial action project;
b) the time period in which remedial groundwater will be withdrawn and used;
c) the anticipated or actual commencement date of withdrawals or use;
d) the purpose for which the remedial groundwater will be used;
e) a copy of a document evidencing approval from ADEQ or the U.S. Environmental Protection Agency (EPA) of the person's withdrawal and use of remedial groundwater, such as a remedial action plan, record of decision or consent decree;
f) the person with or applying for a certificate or designation of assured water supply to which the remedial groundwater will be pledged; and
g) the name and telephone number of water resources may contact regarding the withdrawal or use.
20. Repeals outlined requirements for the amendment of assured water supply rules.
21. Adds, to the definition of hazardous substance, perfluorooctanesulfonic acid, perfluorooctanoic acid and any other substance that is categorized as a perfluoroalkyl or polyfluoroalkyl substance that is detected in a system that is classified as a public water system and that exceeds a maximum contaminant level for perfluoroalkyl and polyfluoroalkyl substances in drinking water adopted by the EPA.
22. Defines annual authorized volume as the annual volume of brackish groundwater that a person may withdraw pursuant to an approved brackish groundwater plan issued by the Director of ADWR.
23. Defines approved brackish groundwater plan as a plan that the Director of ADWR has approved and determined to be consistent with the management goals of an AMA for the withdrawal of brackish groundwater within the AMA.
24. Defines brackish groundwater as groundwater that contains total dissolved solids between 1,000 and 10,000 milligrams per liter.
25. Defines brackish groundwater use to mean, for any year, the amount of remedial groundwater withdrawn from within an AMA pursuant to an approved brackish groundwater plan and used by a person with or applying for a certificate or designation of assured water supply during the year, not to exceed the annual authorized volume.
26. Defines approved remedial action project as a remedial action project approved by ADWR or the EPA.
27. Defines CERCLA.
28. Makes technical and conforming changes.
29. Becomes effective on the general effective date.
Amendments Adopted by Committee of the Whole
1. Outlines requirements for the use and regulation of brackish groundwater, rather than remedial groundwater.
2. Requires the use of an aggregate of 65,000 acre-feet of groundwater withdrawn within all AMAs pursuant to approved remedial action projects to be considered consistent with the management goal of the AMA with outlined exceptions.
3. Requires the use of an amount of groundwater withdrawn pursuant to approved remedial action projects in excess of the authorized aggregate volume of 65,000 acre-feet of groundwater to be considered consistent with the management goal of an AMA.
4. Allows outlined municipal water providers to apply to the Director of ADWR for a determination of whether the provider's withdrawals are consistent with the management goal of the AMA.
5. Prescribes rulemaking authority of the Director of ADWR.
6. Prohibits the amount of groundwater for which the use is determined to be consistent with the management goal to exceed the amount that the municipal provider is legally obligated to withdraw or use.
7. Prohibits the aggregate volume authorized by the Director of ADWR from exceeding 65,000 acre feet in any calendar year.
8. Prohibits the amount of groundwater withdrawn, for annual remediated groundwater withdrawals of 250 acre-feet or less that are withdrawn pursuant to an approved remedial action, the water quality assurance revolving fund program or other applicable law and except for groundwater withdrawn to provide an alternative water supply, to be debited against the water provider's assured water supply mined groundwater account and is not subject to a replenishment obligation.
9. Requires a person with a certificate or designation of assured water supply that is consistent with the management goal of the AMA to meter the remedial groundwater separately from groundwater withdrawn under another authority and outlines reporting criteria.
10. Requires a person with or applying for a certificate or designation that is consistent with the management goal of the AMA to provide an outlined written notice to the Director of ADWR at least 120 days before commencement of the withdrawals or 120 days after the general effective date, whichever is later.
11. Modifies the requirements for the use of brackish groundwater by a person with or applying for a certificate or designation of assured water supply to be deemed consistent with the management goal of the AMA in which the groundwater is withdrawn.
12. Removes the use of remedial groundwater by a person with or applying for a certificate or designation of assured water supply during a year for which outlined conditions apply as consistent with the management goal of an AMA in which the remedial groundwater is withdrawn and is excluded when determining compliance with management goal requirements without approval of the Director of ADWR.
13. Allows a person to apply to the Director of ADWR for a determination that the person's use of the remedial groundwater is consistent with the management goal of the AMA by submitting an application on a form provided by the Director of ADWR if the person has or is applying for a certificate or designation of assured water supply that is using or proposing to use brackish groundwater.
14. Requires the Director of ADWR to calculate the annual amount of brackish groundwater use that is deemed consistent with the management goal if the Director approves an application for an approved brackish groundwater plan.
15. Requires the written notice to the Director of ADWR by a person with or applying for a certificate or designation of assured water supply that is withdrawing or proposing to withdraw or use brackish groundwater and is deemed consistent with the management goals of an AMA to provide the total amount of brackish groundwater that is located in the relevant area from which the annual authorized volume of brackish groundwater will be withdrawn.
16. Removes the requirement that written notice to the Director of ADEQ include a copy of a document evidencing ADEQ or U.S. Environmental Protection Agency approval of the withdrawal and use of remedial groundwater.
17. Removes the requirement that a copy of a proposed remedial action plan containing outlined information be sent to each person on the preliminary list of potentially responsible parties.
18. Removes the exemption of a hazardous substance that meets the outlined definition from substances that the Director of ADEQ must investigate within 90 days after the end of the public comment period if outlined conditions apply.
19. Repeals outlined requirements for the amendment of assured water supply rules.
20. Removes the modifications to the definition of remedial action.
21. Modifies the outlined definition of hazardous substance.
22. Defines terms.
23. Makes technical and conforming changes.
House Action Senate Action
NREW 2/13/24 DP 6-4-0-0 NREW 3/21/24 DPA 4-3-0
3rd Read 2/22/24 31-28-0-0-1
Prepared by Senate Research
April 2, 2024
RA/SDR/slp