Bill Text: AZ HB2186 | 2024 | Fifty-sixth Legislature 2nd Regular | Engrossed
Bill Title: Brackish groundwater incentive
Spectrum: Partisan Bill (Republican 6-0)
Status: (Engrossed - Dead) 2024-04-10 - Senate third reading FAILED voting: (14-12-4-0) [HB2186 Detail]
Download: Arizona-2024-HB2186-Engrossed.html
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Senate Engrossed House Bill
remedial groundwater incentive; brackish groundwater (now: brackish groundwater incentive; brackish groundwater) (now: brackish groundwater incentive) |
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State of Arizona House of Representatives Fifty-sixth Legislature Second Regular Session 2024
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HOUSE BILL 2186 |
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An Act
amending sections 45-561 and 45-576.01, Arizona Revised Statutes; amending title 45, chapter 2, article 9, Arizona Revised Statutes, by adding sections 45-581, 45-581.01, 45-581.02, 45-581.03, 45-581.04 and 45-581.05; amending section 49-201, Arizona Revised Statutes; repealing Laws 1997, chapter 287, section 52, as amended by Laws 1999, chapter 295, section 50 and Laws 2021, chapter 272, section 1; relating to brackish groundwater.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 45-561, Arizona Revised Statutes, is amended to read:
45-561. Definitions
In this article, unless the context otherwise requires:
1. "Annual authorized volume" means the annual volume of brackish groundwater that a person may withdraw PURSUANT to an APPROVED brackish groundwater plan issued by the director.
2. "Approved brackish groundwater plan" means a plan that the director has approved and DETERMINED to be CONSISTENT with the MANAGEMENT goals of an active MANAGEMENT area for the WITHDRAWAL of brackish groundwater WITHIN an active MANAGEMENT area.
3. "Approved remedial action project" means a remedial action project approved by the department of environmental quality pursuant to title 49 or the united states environmental protection agency pursuant to cercla as defined in section 45-802.01.
1. 4. "Aquifer" means a geologic formation that contains sufficient saturated materials to be capable of storing water and transmitting water in usable quantities to a well.
2. 5. "Augmentation" means to supplement the water supply of an active management area and may include the importation of water into the active management area, storage of water or storage of water pursuant to chapter 3.1 of this title.
6. "Brackish groundwater" means groundwater that contains total dissolved solids between one thousand and ten thousand milligrams per liter.
7. "brackish groundwater use" means, for any year, the amount of brackish groundwater withdrawn FROM within an active management area 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.
3. 8. "Incidental recharge" means the percolation of water to an aquifer after the water has been withdrawn, diverted or received for delivery by a municipal provider for use within its service area, except water that is added to an aquifer pursuant to chapter 3.1 of this title.
4. 9. "Incidental recharge factor" means the ratio of the amount of incidental recharge attributable to a municipal provider during a calendar year to the amount of water withdrawn, diverted or received for delivery by the municipal provider for use within its service area during the year. The amount of incidental recharge attributable to a municipal provider during a calendar year is the amount of water that is incidentally recharged during the year after it is withdrawn, diverted or received for delivery by the municipal provider for use within its service area.
5. 10. "Industrial use" means a non-irrigation use of water not supplied by a city, town or private water company, including animal industry use and expanded animal industry use.
6. 11. "Intermediate water duty" means an irrigation water duty, as defined in section 45-402, which that is established by the director during a management period to apply for a specific number of years during the management period.
7. 12. "Large untreated water provider" means a municipal provider that as of January 1, 1990 was serving untreated water to at least five hundred persons or supplying at least one hundred acre-feet of untreated water during a calendar year.
8. 13. "Management period" means a period of years prescribed by sections 45-564 through 45-568 during which a prescribed management plan applies.
9. 14. "Mined groundwater" means the amount of groundwater withdrawn or received by a municipal provider from within an active management area during a calendar year for use in its service area, minus both of the following, as applicable:
(a) An amount of water computed by multiplying the amount of water supplied by the municipal provider for use within its service area during the calendar year by the incidental recharge factor established for the municipal provider pursuant to this article.
(b) If the municipal provider is a city or town in the Tucson active management area, the amount of groundwater withdrawn by the municipal provider during the calendar year from land owned or leased by the municipal provider to which a type 1 non-irrigation grandfathered right under section 45-463, subsection A is appurtenant, up to the following amount:
(i) If the municipal provider has made a request to the director as described in section 45-463, subsection F, the amount of groundwater computed by the director under section 45-463, subsection F, in determining whether to designate or redesignate the municipal provider as having an assured water supply, minus the amount of any groundwater withdrawn by the municipal provider from the land during the period beginning with January 1 of the year in which the request was made and ending on December 31 of the year immediately preceding the calendar year for which the calculation of mined groundwater is being made.
(ii) If the municipal provider has not made a request to the director as described in section 45-463, subsection F, the amount of groundwater that the director would have been required to include in determining whether to designate or redesignate the municipal provider as having an assured water supply, as computed under section 45-463, subsection F, if the municipal provider had made a request to the director as described in that subsection on January 1 of the calendar year for which the calculation of mined groundwater is being made.
10. 15. "Municipal provider" means a city, town, private water company or irrigation district that supplies water for non-irrigation use.
11. 16. "Municipal use" means all non-irrigation uses of water supplied by a city, town, private water company or irrigation district, except for uses of water, other than Colorado river water, released for beneficial use from storage, diversion or distribution facilities to avoid spilling that would otherwise occur due to uncontrolled surface water inflows that exceed facility capacity.
17. "remedial groundwater":
(a) Means groundwater withdrawn pursuant to an approved remedial action project.
(b) Does not include groundwater withdrawn to provide an alternative water supply pursuant to section 49-282.03.
12. 18. "Safe-yield" means a groundwater management goal which attempts to achieve and thereafter maintain a long-term balance between the annual amount of groundwater withdrawn in an active management area and the annual amount of natural and artificial recharge in the active management area.
13. 19. "Small municipal provider" means a municipal provider that supplies two hundred fifty acre-feet or less of water for non-irrigation use during a calendar year. For the purposes of this paragraph, the amount of untreated water that is supplied by a large untreated water provider during a year shall not be counted in determining whether the municipal provider supplied two hundred fifty acre-feet or less of water for non-irrigation use.
14. 20. "Untreated water" means water that is not treated to improve its quality and that is supplied by a municipal provider through a distribution system other than a potable water distribution system.
Sec. 2. Section 45-576.01, Arizona Revised Statutes, is amended to read:
45-576.01. Determining consistency with management goal in a replenishment district, conservation district and water district
A. For the purpose of determining whether an assured water supply exists, the director shall find that a groundwater replenishment district member's projected use is consistent with achieving the management goal for the active management area under section 45-576 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 established pursuant to title 48, chapter 27.
2. The director 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 according to section 45-576.03, subsection E.
3. The master replenishment account established pursuant to section 45-858.01 does not have a debit balance that exceeds the cumulative amount of the district's debits accrued during the four preceding calendar years.
B. For the purpose of determining whether an assured water supply exists, the director shall find that a projected use is consistent with achieving the management goal for the active management area under section 45-576 if all of the following apply:
1. The land for which a certificate is sought is a member land, or the service area of a city, town or private water company for which a designation is sought is a member service area, in a conservation district as provided by title 48, chapter 22, article 4, or the land for which a certificate is sought is a water district member land, or the service area for which a designation is sought is a water district member service area in a water district as provided by title 48, chapter 28, article 7.
2. The director's most recent determination pursuant to section 45-576.03, subsection M, O or R that the plan for operation submitted by the conservation district or water district is consistent with achieving the management goal for the active management area in which the use is located has not expired.
3. The conservation district or the water district, whichever is obligated to replenish groundwater on behalf of the land for which a certificate is sought or the service area of a city, town or private water company for which a designation is sought, is currently in compliance with its groundwater replenishment obligation for the active management area in which the use is located, as determined by the director pursuant to section 45-859.01 or 45-860.01.
C. The use of brackish groundwater by a person with or applying for a certificate or designation of assured water supply during a year is deemed consistent with the management goal of the active management area in which the brackish groundwater is withdrawn and is excluded when determining compliance with management goal requirements in this article if all of the following apply:
1. the director determines that the brackish groundwater use is consistent with the management goal pursuant to section 45-581.01.
2. the person complies with the metering and reporting requirements prescribed in sections 45-581.01 and 45-581.02.
3. The director approves a brackish groundwater plan for the proposed withdrawal and use.
4. 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.
5. If the brackish groundwater will be withdrawn from an EXEMPTION area as prescribed by section 45-411.01 or that is located within the boundaries of an irrigation district established pursuant to title 48, chapter 19, 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.
Sec. 3. Title 45, chapter 2, article 9, Arizona Revised Statutes, is amended by adding sections 45-581, 45-581.01, 45-581.02, 45-581.03, 45-581.04 and 45-581.05, to read:
45-581. Brackish groundwater; applications; authorization; rules
A. A person with or applying for a certificate or designation of assured water supply that is using or proposing to use brackish groundwater may apply to the director for an approved brackish groundwater plan, including a determination that the person's use of the brackish groundwater is consistent with the management goal of the active management area by submitting an application on a form provided by the director.
B. If the director approves an application for an approved brackish groundwater plan, the director shall calculate the annual amount of brackish groundwater use that is deemed consistent with the management goal.
C. The director shall adopt rules:
1. Establishing a simplified application process to determine that brackish groundwater use is consistent with the management goals of an active management area.
2. Outlining the timeline for review for an application submitted pursuant to this section.
3. Outlining the formulation to calculate, increase or decrease the annual authorized volume that can be withdrawn.
45-581.01. Brackish groundwater; metering; reporting
A. 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 under section 45-576.01 shall meter the brackish groundwater withdrawals separately from groundwater withdrawn pursuant to another groundwater withdrawal authority.
B. 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 under section 45-576.01 shall include in its annual reports, filed under section 45-632, the amount of brackish groundwater withdrawn during the reporting year that is consistent with the management goal under this article and the purposes for which the brackish groundwater was used.
45-581.02. Brackish groundwater; brackish groundwater desalination; notice
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 active management area PURSUANT to section 45-576.01 subsection C shall provide not less than one hundred twenty days before commencement of the withdrawals or use or one hundred twenty days after the effective date of this section, whichever is later, written notice to the director of the following:
1. The annual volume of brackish groundwater to be withdrawn from each well pursuant to the approved brackish groundwater plan.
2. 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.
3. The time period in which brackish groundwater will be withdrawn and used.
4. The anticipated or actual commencement date of withdrawals or use.
5. The purpose for which the brackish groundwater will be used.
6. The person with or applying for a certificate or designation of assured water supply to which the brackish groundwater will be pledged.
7. The name and telephone number the department of water resources may contact regarding the withdrawal or use.
45-581.03. Remedial groundwater; incentive; consistency with management goal; definition
a. FOR EACH CALENDAR YEAR, THE USE OF UP TO AN AGGREGATE OF SIXTY-FIVE THOUSAND ACRE-FEET OF GROUNDWATER WITHDRAWN WITHIN ALL ACTIVE MANAGEMENT AREAS PURSUANT TO APPROVED REMEDIAL ACTION PROJECTS PURSUANT to CERCLA OR TITLE 49, EXCEPT FOR GROUNDWATER WITHDRAWN TO PROVIDE AN ALTERNATIVE WATER SUPPLY PURSUANT TO SECTION 49-282.03, SHALL BE CONSIDERED CONSISTENT WITH THE MANAGEMENT GOAL OF THE ACTIVE MANAGEMENT AREA AS PRESCRIBED IN SECTION 45-576.
B. THE USE OF AN AMOUNT OF GROUNDWATER WITHDRAWN PURSUANT TO APPROVED REMEDIAL ACTION PROJECTS PURSUANT to CERCLA OR TITLE 49, EXCEPT FOR GROUNDWATER WITHDRAWN TO PROVIDE AN ALTERNATIVE WATER SUPPLY PURSUANT TO SECTION 49-282.03, IN EXCESS OF THE AGGREGATE VOLUME OF SIXTY-FIVE THOUSAND ACRE-FEET OF GROUNDWATER AUTHORIZED IN SUBSECTIONS A AND C OF THIS SECTION SHALL BE CONSIDERED CONSISTENT WITH THE MANAGEMENT GOAL OF THE ACTIVE MANAGEMENT AREA AS PRESCRIBED IN SECTION 45-576.
C. A MUNICIPAL WATER PROVIDER THAT PROPOSES TO USE GROUNDWATER WITHDRAWN PURSUANT TO AN APPROVED REMEDIAL ACTION PROJECT pursuant to CERCLA OR TITLE 49 AND THAT WISHES THE DIRECTOR to DETERMINE THAT THE USE OF SOME OR ALL OF THE MUNICIPAL PROVIDER'S PROJECTED GROUNDWATER WITHDRAWALS ARE CONSISTENT WITH THE MANAGEMENT GOAL PURSUANT TO SUBSECTION A OR B OF THIS SECTION may APPLY to the director FOR a DETERMINATION. THE AMOUNT OF GROUNDWATER FOR WHICH THE USE IS DETERMINED TO BE CONSISTENT WITH THE MANAGEMENT GOAL PURSUANT TO THIS SECTION may NOT EXCEED THE AMOUNT THAT THE MUNICIPAL PROVIDER IS LEGALLY OBLIGATED TO WITHDRAW OR USE. THE AGGREGATE VOLUME AUTHORIZED BY THE DIRECTOR PURSUANT TO SUBSECTION A OF THIS SECTION may NOT EXCEED SIXTY-FIVE THOUSAND ACRE-FEET IN ANY CALENDAR YEAR.
D. NOT LATER THAN JANUARY 1, 2025, THE DIRECTOR SHALL AMEND THE RULES ADOPTED PURSUANT TO SECTION 45-576, SUBSECTION H TO CARRY OUT THE PURPOSE OF THIS SECTION. BEFORE THE AMENDMENT OF THESE RULES, THE DIRECTOR SHALL TREAT ANY GROUNDWATER WITHDRAWN PURSUANT TO AN APPROVED REMEDIAL ACTION PROJECT PURSUANT to CERCLA OR TITLE 49 ISSUED AFTER THE EFFECTIVE DATE OF THIS SECTION AS CONSISTENT WITH THE MANAGEMENT GOAL AS PROVIDED IN SUBSECTIONS A, B AND C OF THIS SECTION.
E. FOR ANNUAL REMEDIATED GROUNDWATER WITHDRAWALS OF two hundred fifty ACRE-FEET OR LESS THAT ARE WITHDRAWN PURSUANT TO AN APPROVED REMEDIAL ACTION UNDER CERCLA, THE WATER QUALITY ASSURANCE REVOLVING FUND PROGRAM OR OTHER APPLICABLE LAW and EXCEPT FOR GROUNDWATER WITHDRAWN TO PROVIDE AN ALTERNATIVE WATER SUPPLY PURSUANT TO SECTION 49-282.03, THE AMOUNT OF GROUNDWATER WITHDRAWN may NOT BE DEBITED AGAINST THE WATER PROVIDER'S ASSURED WATER SUPPLY MINED GROUNDWATER ACCOUNT AND is NOT SUBJECT TO A REPLENISHMENT OBLIGATION. AN ANNUAL USER OF two hundred fifty ACRE-FEET OR LESS OF REMEDIATED GROUNDWATER SHALL NOTIFY THE director OF COMPLIANCE WITH THE EXEMPTION AND THESE USES do NOT APPLY IN CALCULATING THE sixty-five thousand ACRE-FEET PER YEAR TOTAL PRESCRIBED BY SUBSECTION A OF THIS SECTION.
F. FOR THE PURPOSES OF THIS SECTION, "CERCLA" HAS THE SAME MEANING PRESCRIBED IN SECTION 49-201.
45-581.04. Remedial groundwater; metering; reporting
a. 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 PURSUANT to SECTION 45-576.03 SHALL METER THE REMEDIAL GROUNDWATER WITHDRAWALS SEPARATELY FROM GROUNDWATER WITHDRAWN PURSUANT TO ANOTHER GROUNDWATER WITHDRAWAL AUTHORITY.
B. 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 PURSUANT to SECTION 45-576.03 SHALL INCLUDE IN ITS ANNUAL REPORTS FILED PURSUANT to SECTION 45-632 THE AMOUNT OF REMEDIAL GROUNDWATER WITHDRAWN DURING THE REPORTING YEAR THAT IS CONSISTENT WITH THE MANAGEMENT GOAL PURSUANT to THIS ARTICLE AND THE PURPOSES FOR WHICH THE REMEDIAL GROUNDWATER WAS USED.
45-581.05. Remedial groundwater; desalination; notice
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 PURSUANT to SECTION 45-576.03 SHALL PROVIDE NOT LESS THAN ONE HUNDRED TWENTY DAYS BEFORE COMMENCEMENT OF THE WITHDRAWALS OR USE OR ONE HUNDRED TWENTY DAYS AFTER THE EFFECTIVE DATE OF THIS SECTION, WHICHEVER IS LATER, WRITTEN NOTICE TO THE DIRECTOR OF THE FOLLOWING:
1. THE ANNUAL VOLUME OF REMEDIAL GROUNDWATER TO BE WITHDRAWN FROM EACH WELL PURSUANT TO THE APPROVED REMEDIAL ACTION PROJECT.
2. THE TIME PERIOD IN WHICH REMEDIAL GROUNDWATER WILL BE WITHDRAWN AND USED.
3. THE ANTICIPATED OR ACTUAL COMMENCEMENT DATE OF WITHDRAWALS OR USE.
4. THE PURPOSE FOR WHICH THE REMEDIAL GROUNDWATER WILL BE USED.
5. A COPY OF A DOCUMENT EVIDENCING DEPARTMENT OF ENVIRONMENTAL QUALITY OR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY APPROVAL OF THE PERSON'S WITHDRAWAL AND USE OF REMEDIAL GROUNDWATER, SUCH AS A REMEDIAL ACTION PLAN, RECORD OF DECISION OR CONSENT DECREE.
6. THE PERSON WITH OR APPLYING FOR A CERTIFICATE OR DESIGNATION OF ASSURED WATER SUPPLY TO WHICH THE REMEDIAL GROUNDWATER WILL BE PLEDGED.
7. THE NAME AND TELEPHONE NUMBER THE DEPARTMENT OF WATER RESOURCES MAY CONTACT REGARDING THE WITHDRAWAL OR USE.
Sec. 4. Section 49-201, Arizona Revised Statutes, is amended to read:
49-201. Definitions
In this chapter, unless the context otherwise requires:
1. "Administrator" means the administrator of the United States environmental protection agency.
2. "Aquifer" means a geologic unit that contains sufficient saturated permeable material to yield usable quantities of water to a well or spring.
3. "Best management practices" means those methods, measures or practices to prevent or reduce discharges and includes structural and nonstructural controls and operation and maintenance procedures. Best management practices may be applied before, during and after discharges to reduce or eliminate the introduction of pollutants into receiving waters. Economic, institutional and technical factors shall be considered in developing best management practices.
4. "CERCLA" means the comprehensive environmental response, compensation, and liability act of 1980, as amended (P.L. 96-510; 94 Stat. 2767; 42 United States Code sections 9601 through 9657), commonly known as "superfund".
5. "Clean closure" means implementation of all actions specified in an aquifer protection permit, if any, as closure requirements, as well as elimination, to the greatest degree practicable, of any reasonable probability of further discharge from the facility and of either exceeding aquifer water quality standards at the applicable point of compliance or, if an aquifer water quality standard is exceeded at the time the permit is issued, causing further degradation of the aquifer at the applicable point of compliance as provided in section 49-243, subsection B, paragraph 3. Clean closure also means postclosure monitoring and maintenance are unnecessary to meet the requirements in an aquifer protection permit.
6. "Clean water act" means the federal water pollution control act amendments of 1972 (P.L. 92-500; 86 Stat. 816; 33 United States Code sections 1251 through 1376), as amended.
7. "Closed facility" means:
(a) A facility that ceased operation before January 1, 1986, that is not, on August 13, 1986, engaged in the activity for which the facility was designed and that was previously operated and for which there is no intent to resume operation.
(b) A facility that has been approved as a clean closure by the director.
(c) A facility at which any postclosure monitoring and maintenance plan, notifications and approvals required in a permit have been completed.
8. "Concentrated animal feeding operation" means an animal feeding operation that meets the criteria prescribed in 40 Code of Federal Regulations part 122, appendix B for determining a concentrated animal feeding operation for purposes of 40 Code of Federal Regulations sections 122.23 and 122.24, appendix C.
9. "Department" means the department of environmental quality.
10. "Direct reuse" means the beneficial use of reclaimed water for specific purposes authorized pursuant to section 49-203, subsection A, paragraph 7.
11. "Director" means the director of environmental quality or the director's designee.
12. "Discharge" means 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.
13. "Discharge impact area" means the potential areal extent of pollutant migration, as projected on the land surface, as the result of a discharge from a facility.
14. "Discharge limitation" means any restriction, prohibition, limitation or criteria established by the director, through a rule, permit or order, on quantities, rates, concentrations, combinations, toxicity and characteristics of pollutants.
15. "Effluent-dependent water" means a surface water or portion of a surface water that consists of a point source discharge without which the surface water would be ephemeral. An effluent-dependent water may be perennial or intermittent depending on the volume and frequency of the point source discharge of treated wastewater.
16. "Environment" means WOTUS, any other surface waters, groundwater, drinking water supply, land surface or subsurface strata or ambient air, within or bordering on this state.
17. "Ephemeral water" means a surface water or portion of surface water that flows or pools only in direct response to precipitation.
18. "Existing facility" means a facility on which construction began before August 13, 1986 and that is neither a new facility nor a closed facility. For the purposes of this definition, construction on a facility has begun if the facility owner or operator has either:
(a) Begun, or caused to begin, as part of a continuous on-site construction program any placement, assembly or installation of a building, structure or equipment.
(b) Entered a binding contractual obligation to purchase a building, structure or equipment that is intended to be used in its operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without substantial loss, and contracts for feasibility engineering and design studies, do not constitute a contractual obligation for purposes of this definition.
19. "Facility" means any land, building, installation, structure, equipment, device, conveyance, area, source, activity or practice from which there is, or with reasonable probability may be, a discharge.
20. "Gray water" means wastewater that has been collected separately from a sewage flow and that originates from a clothes washer or a bathroom tub, shower or sink but that does not include wastewater from a kitchen sink, dishwasher or toilet.
21. "Hazardous substance" means:
(a) Any substance designated pursuant to sections 311(b)(2)(A) and 307(a) of the clean water act.
(b) Any element, compound, mixture, solution or substance designated pursuant to section 102 of CERCLA.
(c) Any hazardous waste having the characteristics identified under or listed pursuant to section 49-922.
(d) Any hazardous air pollutant listed under section 112 of the federal clean air act (42 United States Code section 7412).
(e) Any imminently hazardous chemical substance or mixture with respect to which the administrator has taken action pursuant to section 7 of the federal toxic substances control act (15 United States Code section 2606).
(f) Any substance that the director, by rule, either designates as a hazardous substance following the designation of the substance by the administrator under the authority described in subdivisions (a) through (e) of this paragraph or designates as a hazardous substance on the basis of a determination that such substance represents an imminent and substantial endangerment to public health.
(g) Perfluorooctanesulfonic acid, perfluorooctanoic acid and any other substance that is categorized as a perfluoroalkyl or polyfluoroalkyl substance and that is detected in a system that is classified as a public water system as prescribed by section 49-352 and that exceeds a maximum contaminant level for perfluoroalkyl and polyfluoroalkyl substances in drinking water adopted by the United States Environmental Protection Agency.
22. "Inert material":
(a) Means broken concrete, asphaltic pavement, manufactured asbestos-containing products, brick, rock, gravel, sand and soil. Inert material also includes
(b) Does not include 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 established pursuant to section 49-223, 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.
23. "Intermittent water" means a surface water or portion of surface water that flows continuously during certain times of the year and more than in direct response to precipitation, such as when it receives water from a spring, an elevated groundwater table or another surface source, such as melting snowpack.
24. "Major modification" means a physical change in an existing facility or a change in its method of operation that results in a significant increase or adverse alteration in the characteristics or volume of the pollutants discharged, or the addition of a process or major piece of production equipment, building or structure that is physically separated from the existing operation and that causes a discharge, provided that:
(a) A modification to a groundwater protection permit facility as defined in section 49-241.01, subsection C that would qualify for an area-wide permit pursuant to section 49-243 consisting of an activity or structure listed in section 49-241, subsection B shall not constitute a major modification solely because of that listing.
(b) For a groundwater protection permit facility as defined in section 49-241.01, subsection C, a physical expansion that is accomplished by lateral accretion or upward expansion within the pollutant management area of the existing facility or group of facilities shall not constitute a major modification if the accretion or expansion is accomplished through sound engineering practice in a manner compatible with existing facility design, taking into account safety, stability and risk of environmental release. For a facility described in section 49-241.01, subsection C, paragraph 1, expansion of a facility shall conform with the terms and conditions of the applicable permit. For a facility described in section 49-241.01, subsection C, paragraph 2, if the area of the contemplated expansion is not identified in the notice of disposal, the owner or operator of the facility shall submit to the director the information required by section 49-243, subsection A, paragraphs 1, 2, 3 and 7.
25. "New facility" means a previously closed facility that resumes operation or a facility on which construction was begun after August 13, 1986 on a site at which no other facility is located or to totally replace the process or production equipment that causes the discharge from an existing facility. A major modification to an existing facility is deemed a new facility to the extent that the criteria in section 49-243, subsection B, paragraph 1 can be practicably applied to such modification. For the purposes of this definition, construction on a facility has begun if the facility owner or operator has either:
(a) Begun, or caused to begin as part of a continuous on-site construction program, any placement, assembly or installation of a building, structure or equipment.
(b) Entered a binding contractual obligation to purchase a building, structure or equipment that is intended to be used in its operation within a reasonable time. Options to purchase or contracts that can be terminated or modified without substantial loss, and contracts for feasibility engineering and design studies, do not constitute a contractual obligation for purposes of this definition.
26. "Nonpoint source" means any conveyance that is not a point source from which pollutants are or may be discharged to WOTUS.
27. "Non-WOTUS protected surface water" means a protected surface water that is not a WOTUS.
28. "Non-WOTUS waters of the state" means waters of the state that are not WOTUS.
29. "On-site wastewater treatment facility" means a conventional septic tank system or alternative system that is installed at a site to treat and dispose of wastewater of predominantly human origin that is generated at that site.
30. "Ordinary high watermark" means the line on the shore of an intermittent or perennial protected surface water established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris or other appropriate means that consider the characteristics of the channel, floodplain and riparian area.
31. "Perennial water" means a surface water or portion of surface water that flows continuously throughout the year.
32. "Permit" means a written authorization issued by the director or prescribed by this chapter or in a rule adopted under this chapter stating the conditions and restrictions governing a discharge or governing the construction, operation or modification of a facility. For the purposes of regulating non-WOTUS protected surface waters, a permit shall not include provisions governing the construction, operation or modification of a facility except as necessary for the purpose of ensuring that a discharge meets water quality-related effluent limitations or to require best management practices for the purpose of ensuring that a discharge does not cause an exceedance of an applicable surface water quality standard.
33. "Person" means an individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership, association or state, a political subdivision of this state, a commission, the United States government or any federal facility, interstate body or other entity.
34. "Point source":
(a) Means any discernible, confined and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged to WOTUS or protected surface water. Point source
(b) Does not include return flows from irrigated agriculture.
35. "Pollutant" means 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.
36. "Postclosure monitoring and maintenance" means those activities that are conducted after closure notification and that are necessary to:
(a) Keep the facility in compliance with either the aquifer water quality standards at the applicable point of compliance or, for any aquifer water quality standard that is exceeded at the time the aquifer protection permit is issued, the requirement to prevent the facility from further degrading the aquifer at the applicable point of compliance as provided under section 49-243, subsection B, paragraph 3.
(b) Verify that the actions or controls specified as closure requirements in an approved closure plan or strategy are routinely inspected and maintained.
(c) Perform any remedial, mitigative or corrective actions or controls as specified in the aquifer protection permit or perform corrective action as necessary to comply with this paragraph and article 3 of this chapter.
(d) Meet property use restrictions.
37. "Practicably" means able to be reasonably done from the standpoint of technical practicability and, except for pollutants addressed in section 49-243, subsection I, economically achievable on an industry-wide basis.
38. "Protected surface waters" means waters of the state listed on the protected surface waters list under section 49-221, subsection G and all WOTUS.
39. "Public waters" means waters of the state open to or managed for use by members of the general public.
40. "Recharge project" means a facility necessary or convenient to obtain, divert, withdraw, transport, exchange, deliver, treat or store water to infiltrate or reintroduce that water into the ground.
41. "Reclaimed water" means water that has been treated or processed by a wastewater treatment plant or an on-site wastewater treatment facility.
42. "Regulated agricultural activity" means the application of nitrogen fertilizer or a concentrated animal feeding operation.
43. "Safe drinking water act" means the federal safe drinking water act, as amended (P.L. 93-523; 88 Stat. 1660; 95-190; 91 Stat. 1393).
44. "Standards" means water quality standards, pretreatment standards and toxicity standards established pursuant to this chapter.
45. "Standards of performance" means performance standards, design standards, best management practices, technologically based standards and other standards, limitations or restrictions established by the director by rule or by permit condition.
46. "Tank" means a stationary device, including a sump, that is constructed of concrete, steel, plastic, fiberglass, or other non-earthen material that provides substantial structural support, and that is designed to contain an accumulation of solid, liquid or gaseous materials.
47. "Toxic pollutant" means a substance that will cause significant adverse reactions if ingested in drinking water. Significant adverse reactions are reactions that may indicate a tendency of a substance or mixture to cause long lasting or irreversible damage to human health.
48. "Trade secret" means information to which all of the following apply:
(a) A person has taken reasonable measures to protect from disclosure and the person intends to continue to take such measures.
(b) The information is not, and has not been, reasonably obtainable without the person's consent by other persons, other than governmental bodies, by use of legitimate means, other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding.
(c) No statute specifically requires disclosure of the information to the public.
(d) The person has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position.
49. "Vadose zone" means the zone between the ground surface and any aquifer.
50. "Waters of the state" means all waters within the jurisdiction of this state including all perennial or intermittent streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, aquifers, springs, 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.
51. "Well" means a bored, drilled or driven shaft, pit or hole whose depth is greater than its largest surface dimension.
52. "Wetland" means, for the purposes of non-WOTUS protected surface waters, an area that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal conditions does support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
53. "WOTUS" means waters of the state that are also navigable waters as defined by section 502(7) of the clean water act.
54. "WOTUS protected surface water" means a protected surface water that is a WOTUS.
Sec. 5. Repeal
Laws 1997, chapter 287, section 52, as amended by Laws 1999, chapter 295, section 50 and Laws 2021, chapter 272, section 1, is repealed.
