| AGENDA ITEM #: 9. DATE: 05/24/2021 AI #:289 |
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CITY COUNCIL ACTION REPORT
| SUBJECT: | AUTHORIZATION OF APPEAL OF ADEQ PERMIT |
| STAFF PRESENTER(S): | Barbara Chappell, Deputy Public Works Director |
SUMMARY
Request for authorization to appeal a renewal permit issued by Arizona Department of Environmental Quality (ADEQ) for Authorization to Discharge under the Arizona Pollutant Discharge Elimination System and to retain outside counsel to represent the city in the appeal.
Recommendation
ADOPT RESOLUTION NO. 2021-2162 AUTHORIZING THE APPEAL OF THE AUTHORIZATION TO DISCHARGE UNDER THE ARIZONA POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT ISSUED BY ADEQ AND THE RETENTION OF OUTSIDE COUNSEL; ADDRESSING FUNDING OF APPEAL AND PROVIDING AUTHORIZATION AND DIRECTION. (Barbara Chappell, Deputy Public Works Director)
FISCAL IMPACT
The preliminary estimate of the cost of the appeal is between $50,000 and $100,000. This estimate is based on a cursory review and discussion with the environmental law attorney the city will retain if authorized to do so. Until outside counsel has the opportunity to review and identify all the appealable issues, he cannot determine what will be required to support the challenge (i.e. expert witness testimony, direct evidence, etc.) It is anticipated the cost of the appeal through a hearing before ADEQ Board of Appeals will be between $50,000 and $100,000.
BACKGROUND AND PREVIOUS ACTIONS
The city needs to have the ability to dispose of the effluent produced by the 157th Avenue Treatment Plant. Because the city is required to replenish the aquifer for all groundwater withdrawn, the city’s policy is to recharge the effluent to offset ground water withdrawals. Effluent is currently being recharged into the existing SAT site at the northwest corner of Yuma and Estrella Parkway. However, back-up discharge points have been established to allow for the disposal of effluent when it cannot be recharged.
Since the 157th Avenue Treatment Plan became operational, the city has had an Authorization to Discharge under the Arizona Pollutant Discharge Elimination System Permit issued by ADEQ (the “Discharge Permit”) to allow for discharge of effluent into back-up discharge points identified in its permits. The current back-up discharge points include an outfall to the Gila River and an outfall to the Buckeye Water Conservation Drainage District (BID) canal. For the past few years, the city has been using the BID canal exclusively for all discharges of effluent that cannot be recharged.
Discharge permits are issued for five-year terms and the city recently received a renewal permit, which includes substantial modifications from the expiring permit. None of the prior Discharge Permits that included the BID canal as an outfall for the discharge of the city’s effluent classified the BID canal as a Water of the United States. Nonetheless, under the renewal permit, the BID canal was classified as a Water of the United States triggering compliance with more stringent requirements of Federal Clean Water Act.
Since the 157th Avenue Treatment Plan became operational, the city has had an Authorization to Discharge under the Arizona Pollutant Discharge Elimination System Permit issued by ADEQ (the “Discharge Permit”) to allow for discharge of effluent into back-up discharge points identified in its permits. The current back-up discharge points include an outfall to the Gila River and an outfall to the Buckeye Water Conservation Drainage District (BID) canal. For the past few years, the city has been using the BID canal exclusively for all discharges of effluent that cannot be recharged.
Discharge permits are issued for five-year terms and the city recently received a renewal permit, which includes substantial modifications from the expiring permit. None of the prior Discharge Permits that included the BID canal as an outfall for the discharge of the city’s effluent classified the BID canal as a Water of the United States. Nonetheless, under the renewal permit, the BID canal was classified as a Water of the United States triggering compliance with more stringent requirements of Federal Clean Water Act.
STAFF ANALYSIS
Staff believes that the treatment of the BID canal as a Water of the United States is inconsistent with the requirements of federal law and recently enacted state law that was intended to bring Arizona State law in compliance with federal law. In addition, staff objects to various other terms in the permit, including, but not limited to, limits in the levels of certain minerals that can be discharged and terms related to the testing of discharge of effluent into the BID canal.
Discharging effluent into the BID canal when the effluent cannot be recharged is an integral and crucial component of the city’s wastewater operations. The terms of the renewal Discharge Permit, if left unchanged, will adversely affect the city’s operations. Staff is recommending that the city appeal the terms of the renewal Discharge Permit.
Under applicable state law, any appeal of the terms of the permit must be filed within thirty (30) days of the date the decision was received, which was May 4, 2021. Moreover, unless the city appeals a term at the administrative hearing, the city will lose the right to later challenge that term in any subsequent action, which requires that the appeal filed be comprehensive and include all possible challenges to the terms of the permit. Because the appeal involves environmental issues that require the services of outside legal counsel specializing in environmental law, staff is seeking authorization to retain outside counsel to represent the city in this appeal.
Discharging effluent into the BID canal when the effluent cannot be recharged is an integral and crucial component of the city’s wastewater operations. The terms of the renewal Discharge Permit, if left unchanged, will adversely affect the city’s operations. Staff is recommending that the city appeal the terms of the renewal Discharge Permit.
Under applicable state law, any appeal of the terms of the permit must be filed within thirty (30) days of the date the decision was received, which was May 4, 2021. Moreover, unless the city appeals a term at the administrative hearing, the city will lose the right to later challenge that term in any subsequent action, which requires that the appeal filed be comprehensive and include all possible challenges to the terms of the permit. Because the appeal involves environmental issues that require the services of outside legal counsel specializing in environmental law, staff is seeking authorization to retain outside counsel to represent the city in this appeal.