Arizona Aquifer Protection Permit (14-AZ-e)
Aquifer Protection Permit Process
14-AZ-e.1 to 14-AZ-e.2 - Does the Project Require an Aquifer Protection Permit (APP)?
Initially, the developer should determine whether the project requires an APP. Generally, developers need an APP if they own or operate a facility that discharges a pollutant either directly to an aquifer, to the land surface, or to the area between an aquifer and the land surface in such a manner that there is a reasonable probability that the pollutant will reach an aquifer. Most projects that require an APP will require an individual permit. Upon request, the ADEQ will help the developer determine if the facility is able to meet the requirements for a general permit or an exemption. 49-241(B) establishes the types of facilities that are considered discharge facilities. Generally, blowdown cooling towers and evaporation ponds are considered discharging facilities. Any facility that requires a wastewater treatment facility will require an APP. General APPs are available for most sewage collection systems that have a design flow less than 24,000 gallons per day. Each county is responsible for permitting and enforcement of general APPs for septic/wastewater treatment, as delegated by the ADEQ. ARS 49-201(12) defines “discharge” as:
- ”The direct or indirect addition of any pollutant to the waters of the state from a facility. For purposes of the aquifer protection permit program prescribed by article 3 of this chapter, discharge means the addition of a pollutant from a facility either directly to an aquifer or to the land surface or the vadose zone in such a manner that there is a reasonable probability that the pollutant will reach an aquifer.”
ARS 49-201(29) defines “pollutant” as:
- Fluids, contaminants, toxic wastes, toxic pollutants, dredged spoil, solid waste, substances and chemicals, pesticides, herbicides, fertilizers and other agricultural chemicals, incinerator residue, sewage, garbage, sewage sludge, munitions, petroleum products, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and mining, industrial, municipal and agricultural wastes or any other liquid, solid, gaseous or hazardous substances.
If developers remain unsure whether the project requires an APP based on the aforementioned definitions of discharge and pollutant, developers should consult with the ADEQ and may formally submit a Determination of Applicability Request to the ADEQ. Within 45 days of submittal, the ADEQ will notify the developer whether the project requires an APP. AAC R18-9-106 C. The ADEQ may find that the project does not “discharge” within the meaning of ARS 49-201(12) or that the facility is statutorily exempt under ARS 49-250. Otherwise, the ADEQ will notify the developer that an APP is required for the project. AAC R18-9-106 C. Of the 24 listed exemptions, the following are potentially relevant for energy development projects:
- 7. Discharge to a community sewer system;
- 10. Surface impoundments used solely to contain storm runoff, except for surface impoundments regulated by the federal clean water act;
- 21. Structures that are designed and constructed not to discharge and that are built on an impermeable barrier that can be visually inspected for leakage;
- 22. Pipelines and tanks designed, constructed, operated and regularly maintained so as not to discharge;
- 25. Any point source discharge caused by a storm event and authorized in a permit issued pursuant to section 402 of the clean water act.
ARS 49-250. Additionally, there are four class exemptions and two activities to which the program does not apply. However, facilities for energy projects will normally not fall into one of the four class exemptions or two activities. For a complete list of exemptions, see ARS 49-250
14-AZ-e.3 – Hold Pre-application Meeting (optional)
The ADEQ suggests scheduling a pre-application meeting prior to submission of application materials. The developer may request a pre-application meeting. AAC R18-9-A201 D. The pre-application meeting can help facilitate a complete application and result in quicker processing times – which results in lower processing costs. If the developer chooses to schedule a pre-application meeting, the developer should prepare for the meeting and bring the documentation outlined in the Pre-Application Meeting Requested Information.
14-AZ-e.4 - Aquifer Protection Permit Application
The developer must submit an APP Permit Application. Generally, a complete application requires the developer to submit the following information:
- The design of the discharge facility.
- A description of how the facility will be operated;
- Existing and proposed pollutant control measures;
- A hydrogeologic study defining and characterizing the discharge impact area, including the vadose zone;
- The use of water from aquifers in the discharge impact area;
- The existing quality of the water in the aquifers in the discharge impact area;
- The characteristics of the pollutants discharged by the facility;
- Closure strategy; and
- Any other relevant federal or state permits issued to the applicant.
14-AZ-e.5 – Hold Administrative Completeness Review Meeting (optional)
The ADEQ offers an optional administrative completeness review (ACR) meeting that involves the ADEQ project management team and the developer. At the conclusion of the ACR, the ADEQ will make a completeness determination. If the application is administratively complete, the ADEQ will begin the substantive review phase. If the application is not complete, the ADEQ will notify the developer of incompleteness along with a clear explanation of the deficiencies. The developer has the opportunity to cure any deficiencies and re-submit the application. ADEQ APP website
14-AZ-e.6 to 14-AZ-e.7 - Review Application Materials for Completeness
If the developer does not request an ACR meeting, the ADEQ will conduct an internal completeness review. Based on the completeness review, if the ADEQ finds that the application is administratively complete they will begin the substantive review phase. If the application is not complete, the ADEQ will notify the developer of incompleteness along with a clear explanation of the deficiencies. The developer has the opportunity to cure any deficiencies and re-submit the application. ADEQ APP website
14-AZ-e.8 - Conduct Substantive Review of Application
Once administratively complete, the ADEQ will review the application substantively. There are numerous requirements specified in ARS 49-243 and AAC R18-9, Article 2. To comply with those requirements, the applicant must be able to demonstrate the following essential elements:
- Best Available Demonstrated Control Technology (BADCT, pronounced "bad cat"). The applicant must show that the best demonstrated control technology will be used by the facility.
- The applicant must show that Aquifer Water Quality Standards (AWQS) will not be exceeded in the aquifer at the point of compliance as a result of discharge from the facility. If the level of a pollutant in the aquifer already exceeds the AWQS at the time of permit issuance, the aquifer must not be further degraded as a result of the discharge.
- The applicant must show that they have the financial and technical capability to operate in accordance with the permit.
14-AZ-e.9 to 14-AZ-e.10 - Draft APP
If the APP application is substantively sufficient, the ADEQ will issue a draft permit to the developer and then publish a notice of preliminary decision. AAC R18-9-A201 E. The ADEQ will publish the notice of preliminary decision (the draft permit) in a newspaper of general circulation where the project is located and on the ADEQ website.
14-AZ-e.11 to 14-AZ-e.12 - Comment on Application
The general public has 30 days to comment on the notice of preliminary decision. If there is significant public interest in a public hearing, based on written comments received, or if significant issues or information are brought to the attention of the ADEQ that were not previously considered during the permitting process, the ADEQ will hold a public hearing. AAC R18-9-109 B.
14-AZ-e.13 to 14-AZ-e.14 – Publish Notice of Hearing
Prior to the scheduled public hearing, the ADEQ will publish notice of the hearing in a newspaper of general circulation where the project will occur and on the ADEQ website. Subsequently, the ADEQ will hold the hearing and respond to all written public comments. AAC R18-9-109 B.
14-AZ-e.15 Final APP Decision
Whether the ADEQ held a public hearing or decided a hearing was unnecessary, the ADEQ will subsequently make a final decision on the APP. The ADEQ will send notice of the decision in writing to the developer. The final APP may include terms and conditions set forth by the ADEQ and not specified in the application, including:
- Monitoring requirements.
- Record keeping and reporting requirements.
- Contingency plan requirements.
- Discharge limitations.
- Compliance schedule requirements.
- Closure requirements.
14-AZ-e.16 to 14-AZ-e.18 - Does the Developer Appeal the Decision?
If the ADEQ denies the APP, or if the developer takes issue with any attached terms and conditions attached to a granted permit, the developer may appeal the decision to the Water Quality Appeals Board (WQAB). If the developer does not appeal, the ADEQ will send the developer a written copy of the permit, executed upon payment of all associated fees.
14-AZ-e.19 – Submit Appeal to Water Quality Appeals Board (WQAB)
If the developer chooses to appeal, the appeal is to the WQAB pursuant to ARS 49-323.
14-AZ-e.20 to 14-AZ-e.23 – Does the Developer Request an Informal Settlement Conference?
The developer has the opportunity to request an informal settlement conference with the ADEQ prior to a formal hearing on the appeal by the WQAB. AAC R18-9-A201(G)(2)(c). The request for an informal settlement conference must be filed with the ADEQ at least 20 days before the scheduled formal hearing. During the settlement conference, any statements made by either party, written or oral, are inadmissible in any subsequent administrative hearing. ARS 41-1092.06 B. If the parties reach a settlement, the ADEQ will send notice of the settlement to the WQAB and the matter is resolved.
14-AZ-e.24 to 14-AZ-e.26 Notice of Hearing
The WQAB will hold a hearing if there are questions of material fact are at issue in the appeal. ARS 49-323 C. Notice and hearing procedures for any hearing are subject to the Uniform Administrative Hearing Procedures (41-1092). ARS 49-323(A). The WQAB will issue a final decision. The developer can appeal the WQAB’s decision to a district court.
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