Arizona Passes Law that Partially Protects Some Rivers Left Behind from Federal Clean Water Act Rollbacks

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The federal Clean Water Act was weakened with the implementation of the Navigable Waters Protection Rule, which went into effect in Arizona last summer. It leaves the majority of Arizona’s rivers, streams, and lakes unprotected from pollutant discharges and construction activities, putting people, wildlife, and habitat at risk.

Arizona's waterways are used for drinking, growing food, cultural practices, swimming and recreation, and also provide critical habitat for millions of birds. From Ospreys and Belted Kingfishers catching fish, to Black Phoebes and Song Sparrows nesting along riverbanks, hundreds of bird species rely on healthy waterways for drinking, food, and shelter.

In preparation for the reduction of federal protections, in the spring of 2020, Governor Doug Ducey authorized the Arizona Department of Environmental Quality (ADEQ) to develop a legislative proposal to create a state program that would protect the quality of Arizona’s surface waters.

Audubon and our partners in the Water for Arizona Coalition were very appreciative to be part of that process led by ADEQ, called the Stakeholder Advisory Group. This advisory group included a diverse array of stakeholders—including tribal, municipal, agricultural, mining, economic development groups, and environmental non-government organizations.

Through the process, the Stakeholder Advisory Group crafted a proposal that would be protective of Arizona’s waterways. The proposal included a strong permitting program that used science-based water quality standards to regulate pollutant discharges into a protected waterway and included a long list of named intermittent and perennial waters in Arizona to be protected. We were also pushing for the inclusion of Best Management Practices for construction activities in waterways (which could help prevent damage from bulldozers or dumping of construction materials in or near waterways).

We knew the proposal that resulted at the end of ADEQ’s Stakeholder Advisory Group process in December of 2020 would not include everything in it that we wanted. For instance, the proposal did nothing to protect ephemeral streams—streams that only flow after precipitation events. Despite the lack of protections for ephemerals, we continued to negotiate for other essential elements of a state program that would be needed to adequately protect water quality in Arizona.

However, once the proposal entered the decision-making space of the Legislature, it took a shape that did not reflect the consensus-built proposal put forward by the ADEQ Stakeholder Advisory Group—and thus Audubon did not support the bill as it passed through the legislative process.

While better than zero protections, HB 2691 (ADEQ; water quality program; WOTUS [Water of the United States]) leaves out a few key provisions. For instance, it does not include Best Management Practices for construction activities in waterways, it uses a cost-benefit analysis instead of science-based standards when determining water quality standards, and it reduces the ability for the public to be involved in the listing and protection of waterways.

We wanted to provide you this update because this is an important issue for our rivers, lakes, and streams, and the people, birds, fish, and other wildlife that depend on clean water. At this point, we will keep an eye on the state level, as ADEQ begins its process for listing waters to be protected under this new state program, and we will also track what the Biden Administration plans to do on the federal rulemaking process in response to the Navigable Waters Protection Rule.

Thanks for staying engaged on this issue and continuing to advocate on behalf of our rivers, birds, and communities.