Water Rule Leaves Ephemeral Streams Unprotected

By Bret Jaspers, Lauren Gilger
Published: Thursday, January 23, 2020 - 7:50pm
Updated: Friday, January 24, 2020 - 12:32pm

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Beau above Dude Creek.
Bret Jaspers/KJZZ
The reverse angle of the dry wash that empties into Dude Creek.

The Trump administration has made final its definition for what constitutes a “Water of the United States” under the federal Clean Water Act.

“EPA and the Army [Corps of Engineers] are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” said EPA Administrator Andrew Wheeler in the announcement. 

The policy has big implications for Arizona.   

One major change from the previous administration is that the Clean Water Act no longer covers ephemeral streams, defined as streams that run due to rain or snowmelt. A heavy rainfall can pick up pollutants in an ephemeral stream and carry it into larger waterways people rely on for drinking and irrigation.

While states can still regulate discharges into ephemeral streams, they must have laws in place to do that. At the moment, Arizona has no regulatory regime for ephemeral streams.

The Arizona Department of Environmental Quality, which supported the rule when it was first proposed, has started a stakeholder process to develop regulations for in-state ephemeral streams and other waters no longer protected under federal law.

“We do not have a permitting program, up front review, before somebody discharges. Nor do we have any of the cleanup options either,” said Trevor Baggiore in an interview last November after a meeting of stakeholders. Baggiore is director of the water quality division at ADEQ. 

Putting state regulations in place could take several years, since it involves gathering input, crafting a policy, and getting bills passed in the Arizona Legislature.

At the November meeting, ADEQ said up to 93% of Arizona’s streams were set to lose protection under the Trump Administration’s proposed rule. 

The department did not confirm on Thursday the finalized rule would indeed affect that many streams, but said via email it was “currently reviewing the new definition in detail to ensure we fully understand how it impacts Arizona waterways.”

The statement said “ADEQ acknowledges that the narrower definition creates a gap in protection for many Arizona waterways. We are currently developing a ‘local control approach’ to protect Arizona’s important and precious water resources.”

The department’s web page for its ‘Waters of Arizona’ process is azdeq.gov/woaz.

The National Association of Home Builders cheered the Trump administration’s change, predicting it would mean “builders and developers should require fewer Clean Water Act permits.”

Environmentalists, meanwhile, vowed to challenge the administration in court. 

“This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution,” said the Center for Biological Diversity’s Brett Hartl in a statement.

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