A.R.S. tit. 49 ch. 2 — Arizona Revised Statutes Title 49 Chapter 2 — Water Quality Control

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. 22. "Inert material" means broken concrete, asphaltic pavement, manufactured asbestos-containing products, brick, rock, gravel, sand and soil. Inert material also includes 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, 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" 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 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. 49-202. Designation of state agency A. The department is designated as the agency for this state for all purposes of the clean water act, including section 505, the resource conservation and recovery act, including section 7002, and the safe drinking water act. The department may take all actions necessary to administer and enforce these acts as provided in this section, including entering into contracts, grants and agreements, adopting, modifying or repealing rules, and initiating administrative and judicial actions to secure to this state the benefits, rights and remedies of such acts. B. The department shall process requests under section 401 of the clean water act for certification of permits required by section 404 of the clean water act in accordance with subsections C through I of this section. Subsections C, D, G and I of this section apply to the certification of nationwide or general permits issued under section 404 of the clean water act. If the department has denied or failed to act on certification of a nationwide permit or general permit, subsections C through I of this section apply to the certification of applications for or notices of coverage under those permits. C. The department shall review the application for section 401 certification solely to determine whether the effect of the discharge will comply with the water quality standards for WOTUS established by department rules adopted pursuant to section 49-221, subsection A, and section 49-222. The department's review shall extend only to activities conducted within the ordinary high watermark of WOTUS. To the extent that any other standards are considered applicable pursuant to section 401(a)(1) of the clean water act, certification of these standards is waived. D. The department may include only those conditions on certification under section 401 of the clean water act that are required to ensure compliance with the standards identified in subsection C of this section. The department may impose reporting and monitoring requirements as conditions of certification under section 401 of the clean water act only in accordance with department rules. E. The department may request supplemental information from the section 401 certification applicant if the information is necessary to make the certification determination pursuant to subsection C of this section. The department shall request this information in writing. The request shall specifically describe the information requested. After receipt of the applicant's written response to a request for supplemental information, the department shall either issue a written determination that the application is complete or request specific additional information. The applicant may deem any additional requests for supplemental information as a denial of certification for the purposes of subsection I of this section. In all other instances, the application is complete on submission of the information requested by the department. F. The department shall grant or deny section 401 certification and shall send a written notice of the department's decision to the applicant after receipt of a complete application for certification. Written notice of a denial of section 401 certification shall include a detailed description of the reasons for denial. G. The department may waive its right to certification by giving written notice of that waiver to the applicant. The department's failure to act on an application is deemed a waiver pursuant to this subsection and section 401(a)(2) of the clean water act. H. The department shall adopt rules specifying the information the department requires an applicant to submit under this section in order to make the determination required by subsections C and D of this section. Until these rules are adopted, the department shall require an applicant to submit only the following information for certification under this section: 1. The name, address and telephone number of the applicant. 2. A description of the project to be certified, including an identification of the WOTUS in which the certified activities will occur. 3. The project location, including latitude, longitude and a legal description. 4. A United States geological service topographic map or other contour map of the project area, if available. 5. A map delineating the ordinary high watermark of WOTUS affected by the activity to be certified. 6. A description of any measures to be applied to the activities being certified in order to control the discharge of pollutants to WOTUS from those activities. 7. A description of the materials being discharged to or placed in WOTUS. 8. A copy of the application for a federal permit or license that is the subject of the requested certification. I. Pursuant to title 41, chapter 6, article 10 an applicant for certification may appeal a denial of certification or any conditions imposed on certification. Any person who is or may be adversely affected by the denial of or imposition of conditions on the certification of a nationwide or general permit may appeal that decision pursuant to title 41, chapter 6, article 10. J. Certification under section 401 of the clean water act is automatically granted for quarrying, crushing and screening of nonmetallic minerals in ephemeral waters if all of the following conditions are satisfied within the ordinary high watermark of jurisdictional waters: 1. There is no disposal of construction and demolition wastes and contaminated wastewater. 2. Water for dust suppression, if used, does not contain contaminants that could violate water quality standards. 3. Pollution from the operation of equipment in the mining area is removed and properly disposed. 4. Stockpiles of processed materials containing ten percent or more of particles of silt are placed or stabilized to minimize loss or erosion during flow events. For the purposes of this paragraph, "silt" means particles finer than 0.0625 millimeter diameter on a dry weight basis. 5. Measures are implemented to minimize upstream and downstream scour during flood events to protect the integrity of buried pipelines. 6. On completion of quarrying operations in an area, areas denuded of shrubs and woody vegetation are revegetated to the maximum extent practicable. K. For the purposes of subsection J of this section, "ephemeral waters" means waters of the state that have been designated as ephemeral in rules adopted by the department. L. Certification under section 401 of the clean water act is automatically granted for any license or permit required for: 1. Corrective actions taken pursuant to chapter 6, article 1 of this title in response to a release of a regulated substance as defined in section 49-1001 except for those off-site facilities that receive for treatment or disposal materials that are contaminated with a regulated substance and that are received as part of a corrective action. 2. Response or remedial actions undertaken pursuant to chapter 2, article 5 of this title or pursuant to CERCLA. 3. Corrective actions taken pursuant to the resource conservation and recovery act of 1976, as amended (42 United States Code sections 6901 through 6992). 4. Other remedial actions that have been reviewed and approved by the appropriate government authority and taken pursuant to applicable federal or state laws. M. The department of environmental quality is designated as the state water pollution control agency for this state for all purposes of CERCLA, except that the department of water resources has joint authority with the department of environmental quality to conduct feasibility studies and remedial investigations relating to groundwater quality and may enter into contracts and cooperative agreements under section 104 of CERCLA for such studies and remedial investigations. The department of environmental quality may take all action necessary or appropriate to secure to this state the benefits of the act, and all such action shall be taken at the direction of the director of environmental quality as the director's duties are prescribed in this chapter. N. The director and the department of environmental quality may enter into an interagency contract or agreement with the director of water resources under title 11, chapter 7, article 3 to implement the provisions of section 104 of CERCLA and to carry out the purposes of subsection M of this section. 49-202.01. Surface water quality general grazing permit; best management practices for grazing activities; definition A. As part of the duties established pursuant to section 49-203, subsection A, paragraph 4, the director shall implement a surface water quality general grazing permit consisting of voluntary best management practices for grazing activities. B. The terms and conditions of the surface water quality general grazing permit shall be voluntary best management practices that have been determined by the committee to be the most practical and effective means of reducing or preventing the nonpoint source discharge of pollutants into WOTUS by grazing activities. C. In adopting voluntary grazing best management practices, the committee shall consider: 1. The availability and effectiveness of alternative technologies. 2. The economic and social impacts of alternative technologies on grazing and associated industries. 3. The institutional considerations of alternative technologies. 4. The potential nature and severity of discharges from grazing activities and their effect on WOTUS. D. For the purposes of this section, "grazing activities" means the feeding of all classes of domestic ruminant and nonruminant animals on grasses, forbs and shrubs in Arizona watersheds. 49-203. Powers and duties of the director and department A. The director shall: 1. Adopt, by rule, water quality standards in the form and subject to the considerations prescribed by article 2 of this chapter. 2. Adopt, by rule, a permit program for WOTUS that is consistent with but not more stringent than the requirements of the clean water act for the point source discharge of any pollutant or combination of pollutants into WOTUS. The program and the rules shall be sufficient to enable this state to administer the permit program identified in section 402(b) of the clean water act, including the sewage sludge requirements of section 405 of the clean water act and as prescribed by article 3.1 of this chapter. 3. Apply the program and rules authorized under paragraph 2 of this subsection to point source discharges to non-WOTUS protected surface waters, consistent with section 49-255.04, which establishes the program components and rules that do not apply to non-WOTUS protected surface waters. The following are exempt from the non-WOTUS protected surface waters point source discharge program: (a) Discharges to a non-WOTUS protected surface water incidental to a recharge project. (b) Established or ongoing farming, ranching and silviculture activities such as plowing, seeding, cultivating, minor drainage or harvesting for the production of food, fiber or forest products or upland soil and water conservation practices. (c) Maintenance but not construction of drainage ditches. (d) Construction and maintenance of irrigation ditches. (e) Maintenance of structures such as dams, dikes and levees. 4. Adopt, by rule, a program to control nonpoint source discharges of any pollutant or combination of pollutants into WOTUS. 5. Adopt, by rule, an aquifer protection permit program to control discharges of any pollutant or combination of pollutants that are reaching or may with a reasonable probability reach an aquifer. The permit program shall be as prescribed by article 3 of this chapter. 6. Adopt, by rule, the permit program for underground injection control described in the safe drinking water act. 7. Adopt, by rule, technical standards for conveyances of reclaimed water and a permit program for the direct reuse of reclaimed water. 8. Adopt, by rule or as permit conditions, discharge limitations, best management practice standards, new source performance standards, toxic and pretreatment standards and other standards and conditions as reasonable and necessary to carry out the permit programs and regulatory duties described in paragraphs 2 through 6 of this subsection. 9. Assess and collect fees to revoke, issue, deny, modify or suspend permits issued pursuant to this chapter and to process permit applications. The director may also assess and collect costs reasonably necessary if the director must conduct sampling or monitoring relating to a facility because the owner or operator of the facility has refused or failed to do so on order by the director. The director shall set fees that are reasonably related to the department's costs of providing the service for which the fee is charged. Monies collected from aquifer protection permit fees and from Arizona pollutant discharge elimination system permit fees shall be deposited, pursuant to sections 35-146 and 35-147, in the water quality fee fund established by section 49-210. Monies from other permit fees shall be deposited, pursuant to sections 35-146 and 35-147, in the water quality fee fund unless otherwise provided by law. Monies paid by an applicant for review by consultants for the department pursuant to section 49-241.02, subsection B shall be deposited, pursuant to sections 35-146 and 35-147, in the water quality fee fund established by section 49-210. State agencies are exempt from all fees imposed pursuant to this chapter. 10. Adopt, modify, repeal and enforce other rules that are reasonably necessary to carry out the director's functions under this chapter. 11. Require monitoring at an appropriate point of compliance for any organic or inorganic pollutant listed under section 49-243, subsection I if the director has reason to suspect the presence of the pollutant in a discharge. 12. Adopt rules establishing what constitutes a significant increase or adverse alteration in the characteristics or volume of pollutants discharged for purposes of determining what constitutes a major modification to an existing facility under the definition of new facility pursuant to section 49-201. Before adopting these rules, the director shall determine whether a change at a particular facility results in a significant increase or adverse alteration in the characteristics or volume of pollutants discharged on a case-by-case basis, taking into account site conditions and operational factors. 13. Consider evidence gathered by the Arizona navigable stream adjudication commission established by section 37-1121 when deciding whether a permit is required to discharge pursuant to article 3.1 of this chapter. B. The director may: 1. On presentation of credentials, enter into, on or through any public or private property from which a discharge has occurred, is occurring or may occur or on which any disposal, land application of sludge or treatment regulated by this chapter has occurred, is occurring or may be occurring and any public or private property where records relating to a discharge or records that are otherwise required to be maintained as prescribed by this chapter are kept, as reasonably necessary to ensure compliance with this chapter. The director or a department employee may take samples, inspect and copy records required to be maintained pursuant to this chapter, inspect equipment, activities, facilities and monitoring equipment or methods of monitoring, take photographs and take other action reasonably necessary to determine the application of, or compliance with, this chapter. The owner or managing agent of the property shall be afforded the opportunity to accompany the director or department employee during inspections and investigations, but prior notice of entry to the owner or managing agent is not required if reasonable grounds exist to believe that notice would frustrate the enforcement of this chapter. If the director or department employee obtains any samples before leaving the premises, the director or department employee shall give the owner or managing agent a receipt describing the samples obtained and a portion of each sample equal in volume or weight to the portion retained. If an analysis is made of samples, or monitoring and testing are performed, a copy of the results shall be furnished promptly to the owner or managing agent. 2. Require any person who has discharged, is discharging or may discharge into the waters of the state under article 3, 3.1 or 3.3 of this chapter and any person who is subject to pretreatment standards and requirements or sewage sludge use or disposal requirements under article 3.1 of this chapter to collect samples, to establish and maintain records, including photographs, and to install, use and maintain sampling and monitoring equipment to determine the absence or presence and nature of the discharge or indirect discharge or sewage sludge use or disposal. 3. Administer state or federal grants, including grants to political subdivisions of this state, for the construction and installation of publicly and privately owned pollutant treatment works and pollutant control devices and establish grant application priorities. 4. Develop, implement and administer a water quality planning process, including a ranking system for applicant eligibility, wherein appropriated state monies and available federal monies are awarded to political subdivisions of this state to support or assist regional water quality planning programs and activities. 5. Enter into contracts and agreements with the federal government to implement federal environmental statutes and programs. 6. Enter into intergovernmental agreements pursuant to title 11, chapter 7, article 3 if the agreement is necessary to more effectively administer the powers and duties described in this chapter. 7. Participate in, conduct and contract for studies, investigations, research and demonstrations relating to the causes, minimization, prevention, correction, abatement, mitigation, elimination, control and remedy of discharges and collect and disseminate information relating to discharges. 8. File bonds or other security as required by a court in any enforcement actions under article 4 of this chapter. C. Subject to section 38-503 and other applicable statutes and rules, the department may contract with a private consultant to assist the department in reviewing aquifer protection permit applications and on-site wastewater treatment facilities to determine whether a facility meets the criteria and requirements of this chapter and the rules adopted by the director. Except as provided in section 49-241.02, subsection B, the department shall not use a private consultant if the fee charged for that service would be greater than the fee the department would charge to provide that service. The department shall pay the consultant for the services rendered by the consultant from fees paid by the applicant or facility to the department pursuant to subsection A, paragraph 9 of this section. D. The director shall integrate all of the programs authorized in this section and other programs affording water quality protection that are administered by the department for purposes of administration and enforcement and shall avoid duplication and dual permitting to the maximum extent practicable. 49-204. Gray water reuse; residential standards; rules A. A city, town or county may not limit the use of gray water by rule or ordinance unless, in an initial active management area that has a groundwater management goal of safe yield and that does not contain a part of the central Arizona project aqueduct, effluent has been included in an assured water supply determination pursuant to section 45-576 and the use of gray water would reduce the volume of effluent available to satisfy assured water supply requirements applicable to that determination. B. For residential gray water treatment systems that are used indoors for toilet flushing, the director may establish by rule minimum requirements that are necessary specifically to address public health or safety concerns. C. Until rules are adopted pursuant to subsection B of this section, residential gray water may be used indoors for toilet flushing with a gray water treatment system that complies with all of the following: 1. Uses less than four hundred gallons of gray water per day. 2. Is certified to meet standard 350 for residential gray water recycling that is issued by a national sanitary foundation and an American national standards institute. 3. Reasonably precludes human contact with gray water. 4. Provides a dedicated piping system that supplies only treated gray water to the toilet flushing facilities. 5. Provides gray water for toilet flushing only if the system is properly functioning. D. Any residential gray water treatment system that is installed after the effective date of rules adopted pursuant to subsection B of this section and that includes the use of gray water for indoor toilet flushing shall meet the minimum requirements that are established by those rules. 49-205. Availability of information to the public A. Any records, reports or information obtained from any person under this chapter, including records, reports or information obtained or prepared by the director or a department employee, shall be available to the public, except that: 1. Income tax returns are confidential. 2. Drinking water system security vulnerability assessments that are submitted to the United States environmental protection agency, pursuant to Public Law 107-188, are exempt from disclosure under this chapter and title 39, chapter 1. 3. Other information, or a particular part of the information, shall be considered confidential on either: (a) A showing, satisfactory to the director, by any person that the information, or a particular part of the information, if made public, would divulge the trade secrets of the person. (b) A determination by the attorney general that disclosure of the information or a particular part of the information would be detrimental to an ongoing criminal investigation or to an ongoing or contemplated civil enforcement action under this chapter in superior court. B. Notwithstanding subsection A of this section, the following information shall be available to the public: 1. The name and address of any permit applicant or permittee. 2. The chemical constituents, concentrations and amounts of any pollutant discharge. 3. The existence or level of a concentration of a pollutant in drinking water or in the environment. C. Notwithstanding subsection A of this section, and in addition to the information prescribed by subsection B of this section, the following information that is obtained by the department and that relates to discharges authorized by a permit issued under the program adopted pursuant to section 49-203, subsection A, paragraph 2 shall be made available to the public by the department: 1. Information required to be submitted in a permit application. 2. The frequency of the discharge. 3. The temperature and pH level of the discharge. 4. Other water quality characteristics that are required to be reported under the permit. D. Notwithstanding subsection A of this section, the director may disclose any records, reports or information obtained from any person under this chapter, including records, reports or information obtained by the director or department employees, to: 1. Other state employees concerned with administering this chapter or if the records, reports or information is relevant to any administrative or judicial proceeding under this chapter. 2. Employees of the United States environmental protection agency if such information is necessary or required to administer and implement or comply with the clean water act, the safe drinking water act, CERCLA or provisions and regulations relating to those acts. 49-206. Preservation of rights This chapter shall not be construed to abridge or alter causes of action or remedies under the common law or statutory law, criminal or civil, nor shall any provision of this chapter, or any act done by virtue of this chapter, be construed so as to estop any person, this state or any political subdivision of this state, or owners of land having groundwater or surface water rights or otherwise, from exercising their rights or, under the common law or statutory law, from suppressing nuisances or preventing injury due to discharges. 49-207. Discrimination prohibited A. No person may intimidate, threaten, restrain, coerce, blacklist, terminate or in any manner discriminate against any person because that person has filed a complaint or instituted, or caused to be instituted, a proceeding under this chapter or has testified or is about to testify in such a proceeding or has exercised, on behalf of himself or others, any right or protection afforded by this chapter. B. A person who believes he has been discriminated against in violation of this section may, within one hundred eighty days after the violation, file a complaint with the attorney general. On receipt of the complaint, the attorney general may investigate as he deems appropriate. If, after investigation, the attorney general determines that this section has been violated, he may bring an action in superior court against any alleged violator. C. In an action brought under this section, the court has jurisdiction to restrain a violation and order any appropriate relief, including rehiring or reinstatement of a person, with back pay and double damages. 49-208. Public participation A. The director, by rule, shall prescribe procedures to assure adequate public participation in proceedings of the department under this chapter. The public participation procedures shall meet the requirements of the clean water act and safe drinking water act for permits issued under those acts. At a minimum, public participation procedures shall prescribe public notice requirements including the content and publication of the notice, provide an opportunity for public hearings and specify the procedures governing the hearings and require the public availability of relevant documents. Public hearings shall be held at places and times which afford a reasonable opportunity to persons to participate. B. The director shall provide for and encourage public participation in developing such rules, plans and informational materials, including handbooks and guidance documents, as are required or necessary to implement the provisions of this chapter. 49-209. Industrial discharges to community sewer systems; registration; fee A. Each person that is required to obtain a permit for discharges into a community sewer system under federal categorical industrial pretreatment regulations and standards shall register each year with the director and pay an annual registration fee of two hundred fifty dollars. B. On or before January 31 each year each public or private entity that issues a permit for discharges into a community sewer system shall transmit to the director a list of current permittees and their addresses. The director shall prescribe a procedure for notifying permittees of the registration requirements of this section and collecting the prescribed fee. C. The director shall deposit all monies collected under this section in the water quality assurance revolving fund established by section 49-282 and may authorize expenditures from the fund, pursuant to section 49-282, to pay the reasonable and necessary costs of administering the registration program. 49-210. Water quality fee fund; appropriation; exemption; monies held in trust A. The water quality fee fund is established consisting of monies appropriated by the legislature and fees received pursuant to sections 49-104, 49-203, 49-211, 49-241, 49-241.02, 49-242, 49-245, 49-255.01, 49-352, 49-353 and 49-361. The director shall administer the fund. B. Monies in the fund are subject to annual legislative appropriation to the department for water quality programs. Monies in the fund are exempt from the provisions of section 35-190 relating to lapsing of appropriations. C. On notice from the director, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the fund. D. Monies in the water quality fee fund shall be used for activities required to implement this chapter, except for articles 1.1 and 5 of this chapter, and to implement section 49-104, subsection B, paragraphs 9 through 13 and subsection C. E. Any fee, assessment or other levy that is authorized by law or administrative rule and that is collected and deposited in the water quality fee fund shall be held in trust. The monies in the fund may be used only for the purposes prescribed by statute and shall not be appropriated or transferred by the legislature to fund the general operations of this state or to otherwise meet the obligations of the general fund of this state. This subsection does not apply to any taxes or other levies that are imposed pursuant to title 42 or 43. 49-211. Direct potable reuse of treated wastewater; fees; rules A. On or before December 31, 2024, the director shall establish by rule permit fees sufficient to administer a direct potable reuse of treated wastewater program. Monies collected pursuant to this section shall be deposited, pursuant to sections 35-146 and 35-147, in the water quality fee fund established by section 49-210. B. On or before December 31, 2024, the director shall adopt all rules necessary to establish and implement a direct potable reuse of treated wastewater program, including rules establishing permitting standards and a permit application process. 49-218. Definitions In this article, unless the context otherwise requires: 1. "CERCLA brownfields cleanup revolving loan fund program" means the program established by the United States environmental protection agency to provide financial assistance in the form of loans or grants to eligible persons to remediate contamination at eligible sites as provided in section 104(k) of CERCLA and applicable guidance documents prepared by the United States environmental protection agency to implement this program. 2. "Eligible activities" means removal as defined by section 101(23) of CERCLA and includes required engineering evaluations, cost analysis of cleanup alternatives, public participation requirements and reasonable and necessary site monitoring activities during the remediation. 3. "Eligible person" means a person who is eligible to receive a loan or grant under the CERCLA brownfields cleanup revolving loan fund program. 4. "Eligible site" means a site that is a brownfields site as defined by section 101(39) of CERCLA, that is within an area designated in a cooperative agreement between the department and the United States environmental protection agency and that is one of the following: (a) Accepted into the department's voluntary remediation program. (b) Subject to a remediation agreement with the department's water quality assurance revolving fund program. (c) Being addressed through another program or oversight mechanism that is approved by the department. 49-218.01. Brownfields cleanup revolving loan fund program; eligibility A. The director may implement the Brownfields cleanup revolving loan fund program pursuant to the requirements of the CERCLA Brownfields cleanup revolving loan fund program. B. The director may: 1. Enter into financial assistance agreements, as deemed appropriate, with eligible persons for the performance of eligible activities at eligible sites. 2. Apply for, accept and administer grants and other financial assistance from the federal government and from other public and private sources for the Brownfields cleanup revolving loan fund program. 3. Enter into agreements to administer the program. 4. Enter into agreements with the water infrastructure finance authority pursuant to section 49-1203 to perform any of the functions of the fund manager pursuant to the CERCLA Brownfields cleanup revolving loan fund program. 5. Assess fees to administer the Brownfields cleanup revolving loan fund program consistent with any cooperative agreement with the environmental protection agency. C. Financial assistance monies shall be used to perform removal actions that meet the requirements of the applicable program or oversight mechanism, the CERCLA Brownfields cleanup revolving loan fund program and this article. To the extent possible, the department shall eliminate duplicative requirements among the programs. D. The following are not eligible for the Brownfields cleanup revolving loan fund program: 1. A site listed or proposed for listing on the national priorities list. 2. A site that is subject to state or federal unilateral administrative orders, a court order, administrative orders on consent or a judicial consent decree issued to or entered into by parties under CERCLA or this title. 3. A site that is subject to the jurisdiction, custody or control of the United States government. E. The director, through the attorney general, may take actions necessary to enforce the loan contract and achieve repayment of loans provided under this article. 49-218.02. Brownfields cleanup revolving loan fund A. The Brownfields cleanup revolving loan fund is established to be administered by the director. The fund consists of monies from the following sources: 1. Monies appropriated by the legislature. 2. Monies received from the federal government. 3. Monies received from loan recipients and loan repayments, interest and penalties. 4. Interest and other income received from investing monies in the fund. 5. Gifts, grants and donations received from any public or private source. B. Monies in the fund may be used for the purposes provided in section 49-218.01. C. The department may use monies in the fund for the department's costs in administering the Brownfields cleanup revolving loan fund program. D. Disbursement of monies from the fund pursuant to a financial assistance agreement under this article is not subject to title 41, chapter 23. E. Monies in the fund are continuously appropriated and are exempt from the provisions of section 35-190, relating to lapsing of appropriations. 49-221. Water quality standards in general; protected surface waters list A. The director shall: 1. Adopt, by rule, water quality standards for all WOTUS and for all waters in all aquifers to preserve and protect the quality of those waters for all present and reasonably foreseeable future uses. For non-WOTUS protected surface waters, the director shall apply surface water quality standards established as of January 1, 2021, until specifically changed by the director pursuant to paragraph 2 of this subsection. Rules regarding the following shall not be adopted or applied as water quality standards for non-WOTUS protected surface waters: (a) Antidegradation. (b) Antidegradation criteria. (c) Outstanding Arizona waters. 2. Adopt, by rule, water quality standards for non-WOTUS protected surface waters, by December 31, 2022, consistent with paragraph 1 of this subsection and as determined necessary in the rulemaking process. In adopting those standards, the director shall consider the unique characteristics of this state's surface waters and the economic, social and environmental costs and benefits that would result from the adoption of a water quality standard at a particular level or for a particular water category. B. The director may adopt, by rule, water quality standards for waters of the state other than those described in subsection A of this section, including standards for the use of water pumped from an aquifer that does not meet the standards adopted pursuant to section 49-223, subsections A and B and that is put to a beneficial use other than drinking water. These standards may include standards for the use of water pumped as part of a remedial action. In adopting such standards, the director shall consider the economic, social and environmental costs and benefits that would result from the adoption of a water quality standard at a particular level or for a particular water category. C. In setting standards pursuant to subsection A or B of this section, the director shall consider the following: 1. The protection of the public health and the environment. 2. The uses that have been made, are being made or with reasonable probability may be made of these waters. 3. The provisions and requirements of the clean water act and safe drinking water act and the regulations adopted pursuant to those acts. 4. The degree to which standards for one category of waters could cause violations of standards for other, hydrologically connected, water categories. 5. Guidelines, action levels or numerical criteria adopted or recommended by the United States environmental protection agency or any other federal agency. 6. Any unique physical, biological or chemical properties of the waters. D. Water quality standards shall be expressed in terms of the uses to be protected and, if adequate information exists to do so, numerical limitations or parameters, in addition to any narrative standards that the director deems appropriate. E. The director may adopt by rule water quality standards for the direct reuse of reclaimed water. In establishing these standards, the director shall consider the following: 1. The protection of public health and the environment. 2. The uses that are being made or may be made of the reclaimed water. 3. The degree to which standards for the direct reuse of reclaimed water may cause violations of water quality standards for other hydrologically connected water categories. F. If the director proposes to adopt water quality standards for agricultural water, the director shall consult, cooperate, collaborate and, if necessary, enter into interagency agreements and memoranda of understanding with the Arizona department of agriculture relating to its administration pursuant to title 3, chapter 3, article 4.1 of this state's authority relating to agricultural water under the United States food and drug administration produce safety rule (21 Code of Federal Regulations part 112, subpart E) and any other federal produce safety regulation, order or guideline or other requirement adopted pursuant to the FDA food safety modernization act (P.L. 111-353; 21 United States Code sections 2201 through 2252). For the purposes of this subsection: 1. "Agricultural water": (a) Means water that is used in a covered activity on produce where water is intended to, or is likely to, contact produce or food contact surfaces. (b) Includes all of the following: (i) Water used in growing activities, including irrigation water, water used for preparing crop sprays and water used for growing sprouts. (ii) Water used in harvesting, packing and holding activities, including water used for washing or cooling harvested produce and water used for preventing dehydration of produce. 2. "Covered activity" means growing, harvesting, packing or holding produce. Covered activity includes processing produce to the extent that the activity is within the meaning of farm as defined in section 3-525. 3. "Harvesting" has the same meaning prescribed in section 3-525. 4. "Holding" has the same meaning prescribed in section 3-525. 5. "Packing" has the same meaning prescribed in section 3-525. 6. "Produce" has the same meaning prescribed in section 3-525. G. The director shall maintain and publish a protected surface waters list. The department shall publish the initial list on the department's website and in the Arizona administrative register within thirty days after September 29, 2021. Not later than December 31, 2022, the department shall adopt by rule the protected surface waters list, including procedures for determining economic, social and environmental costs and benefits. Publication of the list in the Arizona administrative register is an appealable agency action pursuant to title 41, chapter 6, article 10 and may be appealed by any party that provides evidence of an actual adverse effect that the party appealing the decision would suffer as a result of the director's decision. All of the following apply to the protected surface water list: 1. The protected surface waters list shall include: (a) All WOTUS. (b) Any perennial, intermittent and ephemeral reaches and any impoundments of the following rivers, not including tributaries or reaches of waters wholly within tribal jurisdiction or reaches of waters outside of the United States: (i) The Bill Williams river, from the confluence of the Big Sandy and Santa Maria rivers at 113°31'38.617"w, 34°18'22.373"n, to its confluence with the Colorado River at 114°8'9.854"w, 34°18'9.33"n. (ii) The Colorado River, from the Arizona-Utah border at 111°32'35.741"w, 36°58'51.698"n, to the Arizona-Mexico border at 114°43'12.564"w, 32°43'6.218"n. (iii) T