Surface Water Protection

Frequently Asked Questions

What are Waters of the United States?

The Clean Water Act protects water quality across the United States for what are considered Waters of the United States (WOTUS). In January 2020, the Environmental Protection Agency (EPA) finalized a new rule to define WOTUS. This rule is called the Navigable Waters Protection Rule | View >

When will the Navigable Waters Protection Rule go into effect?

60 days after it is published to the Federal Register | View >

Why does ADEQ support the new rule and definition for WOTUS?

Ambiguity in the past definition has led to much debate and devisiveness, as evidenced by three Supreme Court cases, rather than effective environmental protection. Plus, the surface waters in Arizona are unique, as are the geomorphology and weather conditions that influence them. ADEQ believes it is best for Arizona to apply local expertise and knowledge to protect our waters in practical and pragmatic ways.

Why does ADEQ believe it is better equipped than the federal government to regulate our state’s waterways?

Arizona’s geomorphology and weather patterns are unique and can differ greatly from other areas of the United States. Local expertise and understanding are essential to effectively protect our state’s precious water resources. ADEQ can leverage staff expertise, local stakeholder input, other agency experts and regional scientists to collaborate in building a scientifically defensible, sustainable water quality program that reasonably protects public water supply, agricultural, industrial, recreational,  environmental and other potential uses for surface waters of the state.

Will ADEQ enforce the new definition when it goes into effect?

As with all programs for which ADEQ has regulatory authority from the EPA for compliance and enforcement, ADEQ is required to follow the federal rules. This means the agency will need to adhere to the new WOTUS definition when it becomes effective. There is a possibility that a stay on the final rule could keep it from going into effect either nationally or in some states. If this were to occur, ADEQ would continue to operate under the current federal rules/WOTUS for the duration of the stay. In fact, the 2015 definition was stayed in Arizona so the state continued to conduct compliance and enforcement on the older definition. ADEQ also enforces groundwater, solid waste and other programs that will continue to protect waters in Arizona. For example, in Arizona, all groundwater is considered a potential drinking water source  and the groundwater protection program was developed to protect these aquifers from impacts | See More >

What are waters of the state?

Waters of the state, as defined in statute , are “all waters within the jurisdiction of this state including all perennial or intermittent streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, aquifers, 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.”1 This generally means that all surface and groundwater resources within the state’s jurisdiction are considered a waters of the state (Arizona).

What is ADEQ doing to protect non-WOTUS and ephemeral drainages once the new rule goes into effect?

ADEQ enforces groundwater, solid waste and other programs that will continue to protect waters in Arizona. ADEQ is also evaluating all options to protect Arizona surface waters, such as lakes and streams, and ephemeral drainages, which only run in response to a precipitation event, and needs policymakers and stakeholders to collaborate with the State to determine next steps. An outline for a potential state surface water protection program is in process and development will be done through a robust and collaborative stakeholder process | See More >

Will ADEQ propose legislation to protect non-WOTUS and ephemeral drainages?

ADEQ cannot propose legislation, but can make recommendations to the “Governor and the legislature on all matters concerning department objectives.”  Through a collaborative stakeholder process, ADEQ is developing an outline for a potential state surface water protection program, which would need approval from the Arizona legislature | See More >

How much of Arizona is going to be impacted by the change in the WOTUS definition?

The change would mean some rivers, streams, lakes, ponds and ephemeral drainages would no longer be regulated by the Clean Water Act as they will no longer be considered a WOTUS. Under the proposed rule, which was released for comment in December 2018, ADEQ estimated 85 to 93 percent would be impacted. However, these numbers are no longer valid, as they were based on the proposed definition, not the final definition, which was released January 2020. The final definition differs from the proposed in some areas, especially in how an ephemeral segment of a waterbody could make upstream waters non-jurisdictional. ADEQ expects the number previously estimated to be reduced.

Protection of waters still defined as a WOTUS will continue through the Arizona Pollution Discharge Elimination System (AZPDES) program, which requires dischargers to meet regulatory requirements of the Clean Water Act. WOTUS will also be monitored and protected as they currently are under additional Clean Water Act programs | List of ADEQ Permits >

How will ADEQ determine which waters are WOTUS and which are not when the new rule goes into effect?

When the Navigable Waters Protection Rule was announced, the EPA acknowledged there is no comprehensive map of jurisdictional versus non-jurisdictional waters across the country at this time | See More >

To begin addressing this issue in Arizona, ADEQ is evaluating decision criteria, improving flow regime maps, and developing a process for evaluating jurisdictional status, along with state and federal agency partners.

What does the change mean to current permits issued for WOTUS in Arizona?

ADEQ anticipates that EPA’s proposed WOTUS rule will reduce the number of permits currently required by the Clean Water Act. However, until such time as the WOTUS definition is finalized and in effect in Arizona, there are no changes to permitting, and facilities with Clean Water Act permits must remain in compliance. Once the change goes into effect, a determination of WOTUS or non-WOTUS would need to be evaluated, plus non-WOTUS waters may be regulated under existing programs or a potential state surface water program. For this reason, ADEQ is also cautioning permittees against any significant changes to current processes until a full evaluation can be conducted. ADEQ remains in contact with permittees and potential permittees to assist them in answering questions about their facility.

What will a state surface water protection program be named?

ADEQ is currently conducting a robust and collaborative stakeholder process to develop an outline for a state surface water protection program. This program is not intended to duplicate of federal regulations, but a program tailored to Arizona’s unique environment and the needs of stakeholders. The name of the program will likely reflect the stakeholder input | See More >

What is ADEQ doing to engage Tribes in development of a state surface water protection program?

ADEQ is currently engaging tribes to update the agency’s tribal consultation policy to better understand what consultation means to each respective tribe. ADEQ is also hosting meetings with tribal representatives, in conjunction with stakeholder meetings, to better inform tribes and gather input in the development of a state surface water protection program. Tribes can also invite ADEQ to engage in a consultation at their preferred location | Email the ADEQ Tribal Liaison >