Section R12-15-729. Remedial Groundwater; Consistency with Man- agement Goal

A.      Use of remedial groundwater by a municipal provider before January 1, 2025, is deemed consistent with the management goal of the AMA in which the remedial groundwater is with- drawn and is excluded when determining compliance with management goal requirements in this Article if all of the fol- lowing apply:

1.        The Director determines that the remedial groundwater use is consistent with the management goal under subsec- tion (F) or (H) of this Section or the remedial groundwa- ter use is consistent with the management goal under subsection (J) of this Section; and

2.        The municipal provider complies with the metering and reporting requirements in subsection (K) of this Section.

B.       A municipal provider that is using remedial groundwater or that has agreed in a consent decree or other document approved by ADEQ or the EPA to use remedial groundwater may apply to the Director for a determination that the munici- pal provider’s use of the remedial groundwater is consistent with the management goal of the active management area by submitting an application on a form provided by the Director with the information required in subsection (D) of this Section before January 1, 2010.

C.      A municipal provider filing an application under subsection

(B) of this Section for remedial groundwater use associated with a treatment plant in operation before June 15, 1999, may request an increase in the project’s annual authorized volume at the time the application is filed. The Director shall grant the request and increase the annual authorized volume up to the maximum treatment capacity of the treatment plant if the municipal provider submits evidence that an increase in the annual authorized volume is necessary to further the purpose of the remedial action project and that the increase is not in violation of the consent decree or other document approved by ADEQ or the EPA for the remedial action project.

D.      An applicant shall provide the following with an application submitted under subsection (B) of this Section:

1.        A document evidencing ADEQ’s or EPA’s approval of the municipal provider’s withdrawal and use of remedial groundwater, such as a remedial action plan, record of decision, or consent decree;

2.        The volume of remedial groundwater that will be with- drawn and used annually by the municipal provider and the purpose for which the remedial groundwater will be used;

3.        The time period during which the remedial groundwater will be withdrawn and used by the municipal provider;

4.        A reference to the annual authorized volume provided in the document submitted pursuant to subsection (D)(1) of this Section or, if the document submitted pursuant to subsection (D)(1) does not specify the annual authorized volume for the project, the annual authorized volume claimed by the municipal provider and a written justifica- tion for that volume;

5.        If the approved remedial action project is currently oper- ating, the volume of remedial groundwater withdrawn pursuant to the project for each year before the year in which the application is filed;

6.        The designated provider or certificate to which the reme- dial groundwater will be pledged;

7.        If the municipal provider is requesting an increase in the annual authorized volume of the project pursuant to sub- section (C) of this Section, evidence that the increase is necessary to further the purpose of the remedial action project and that the increase is not in violation of the con- sent decree or other document approved by ADEQ or the EPA for the project;

8.        The name and telephone number of a person the Depart- ment may contact regarding the application; and

9.        Any other information reasonably required to assist the Director in making the determination under subsection

(F) of this Section.

E.       After receiving an application under subsection (B) of this Section, the Director shall determine that the application is complete and correct if it contains all the information required in subsection (D) of this Section and the Director verifies that the information is accurate. If the Director determines that the application is complete and correct, the Director shall assign a priority date to the application according to the following:

1.        If the Director determines that the application was com- plete and correct when filed, the priority date of the appli- cation is the date the application was filed.

2.        If the Director determines that the application was not complete or correct when filed because of minor deficien- cies, the Director shall notify the applicant of the defi- ciencies in writing and give the applicant 30 days to correct the deficiencies. If the applicant submits the nec- essary information to correct the deficiencies within 30 days after the date of the notice, the priority date of the application is the date the application was filed.

3.        If the Director determines that the application was not complete or correct when filed and that the deficiencies are not minor, the Director shall notify the applicant of the deficiencies and give the applicant at least 60 days to submit the necessary information to correct the deficien- cies. If the applicant submits the necessary information to correct the deficiencies within the time allowed by the Director, the priority date of the application is the date the applicant submits the necessary information to correct the deficiencies.

F.       The Director shall approve a complete and correct application filed under subsection (B) of this Section if the Director deter- mines that the applicant will use remedial groundwater before January 1, 2025. If the Director approves a municipal pro- vider’s application, the  Director shall calculate  the annual amount of remedial groundwater use that is deemed consistent with the management goal of the AMA as follows:

1.        The Director shall determine the total annual amount of remedial groundwater use in all AMAs that is deemed to be consistent with the management goal under this sub- section and subsections (H) and (I) of this Section for applications with a priority date earlier than the priority date of the municipal provider’s application.

2.        If the amount determined in subsection (F)(1) of this Sec- tion is less than 65,000 acre-feet and the difference between those amounts is equal to or greater than the municipal provider’s authorized remedial groundwater use during the year, the amount of remedial groundwater use by the municipal provider that is deemed to be consis- tent with the management goal during the year is the amount of the municipal provider’s authorized remedial groundwater use during the year.

3.        If the amount determined in subsection (F)(1) of this Sec- tion is less than 65,000 acre-feet and the difference between those amounts is less than the municipal pro- vider’s authorized remedial groundwater use during the year, the amount of remedial groundwater use by the municipal provider that is deemed consistent with the management goal during the year is the amount of the municipal provider’s authorized remedial groundwater use during the year up to the difference between the amount determined in subsection (F)(1) and 65,000 acre- feet, plus a percentage of the municipal provider’s autho- rized remedial groundwater use during the year that exceeds the difference. The percentage is 50 percent for calendar years 2000 through 2009, 25 percent for calen- dar years 2010 through 2019, and 10 percent for calendar years 2020 through 2024.

4.        If the amount determined in subsection (F)(1) of this Sec- tion is equal to or greater than 65,000 acre-feet, the amount of remedial groundwater use by the municipal provider that is deemed consistent with the management goal during the year is a percentage of the municipal pro- vider’s authorized remedial groundwater use during the year. The percentage is 50 percent for calendar years 2000 through 2009, 25 percent for calendar years 2010 through 2019, and 10 percent for calendar years 2020 through 2024.

G.      If the Director determines that remedial groundwater use by a municipal provider is consistent with the management goal of the active management area under subsection (F) of this Sec- tion, the determination shall apply to remedial groundwater used by the municipal provider between the priority date of the application and January 1, 2025.

H.      If, before the effective date of this Section, a municipal pro- vider filed an application with the Director requesting that the Director determine that the provider’s use of remedial ground- water pursuant to an approved remedial action project is con- sistent with the management goal of the active management area under Laws 1997, Ch. 287, § 52, as amended by Laws 1999, Ch. 295, § 50, the following shall apply:

1.        If the Director approved the application before the effec- tive date of this Section and determined the annual amount of remedial groundwater use by the applicant that will be considered consistent with the management goal, the Director’s determination shall apply after the effec- tive date of this Section and the Director shall include the annual amount of remedial groundwater use determined by the Director to be consistent with the management goal in the total amount of remedial groundwater deter- mined in subsection (F)(1) of this Section.

2.        If the Director did not approve the application before the effective date of this Section, the Director shall process the application under subsections (E) and (F) of this Sec- tion. If the Director approves the application, the Direc- tor’s determination shall apply to remedial groundwater withdrawn and used by the municipal provider pursuant to the approved remedial action project from the priority date of the application until January 1, 2025.

I.        A municipal provider that is using remedial groundwater that has been determined by the Director to be consistent with the management goal under subsection (F) or (H) of this Section may apply to the Director for an increase in the annual autho- rized volume of the approved remedial action project as fol- lows:

1.        The applicant shall submit an application on a form pro- vided by the Director.

2.        The Director shall determine that the application is com- plete and correct if it contains all of the required informa- tion and the Director verifies that the information is accurate.

3.        If the Director determines that an application filed under this subsection is complete and correct, the Director shall assign a priority date to the application using the criteria in subsection (E) of this Section.

4.        The Director shall approve the application if the munici- pal provider submits information that demonstrates one of the following:

a.         The annual authorized volume of the approved remedial action project has been increased in a con- sent decree or other document approved by ADEQ or the EPA; or

b.        An increase is necessary to further the purpose of the approved remedial action project, and the increase is

not in violation of the consent decree or other docu- ment approved by ADEQ or the EPA for the project.

5.        If the Director approves the application, the Director shall determine the additional annual amount of remedial groundwater use by the municipal provider that is deemed consistent with the management goal of the active management area, using the criteria in subsections

(F) and (G) of this Section. The Director shall include the annual amount of remedial groundwater use determined by the Director to be consistent with the management goal under this subsection in the total amount of remedial groundwater determined in subsection (F)(1) of this Sec- tion.

J.        Until January 1, 2025, use of remedial groundwater by a municipal provider during a year is deemed consistent with the management goal of the AMA in which the remedial ground- water was withdrawn without approval of the Director under subsection (F) or (H) of this Section if:

1.        The total annual amount of remedial groundwater with- drawn from all wells pursuant to the approved remedial action project does not exceed 250 acre-feet; and

2.        If remedial groundwater withdrawals pursuant to the approved remedial action project commenced before June 15, 1999, the municipal provider notified the Director in writing of the volume and duration of the anticipated withdrawals on or before August 15, 1999. If remedial groundwater withdrawals pursuant to the approved reme- dial action project commenced on or after June 15, 1999, the municipal provider gave written notice of the volume and duration of the anticipated withdrawals on or before August 15, 1999, or before the date the withdrawals com- menced, whichever is later. If the municipal provider gives notice after the effective date of this Section, the municipal provider shall include or attach all of the fol- lowing:

a.         A copy of a document evidencing ADEQ’s or EPA’s approval of the municipal provider’s withdrawal and use of remedial groundwater, such as a remedial action plan, record of decision, or consent decree;

b.        The volume of remedial groundwater that will be withdrawn and used annually by the municipal pro- vider and the purpose for which the remedial groundwater will be used;

c.         The time period during which the remedial ground- water will be withdrawn and used by the municipal provider;

d.        If the approved remedial action project is currently operating, the volume of remedial groundwater withdrawn pursuant to the project for each year before the year in which the application is filed;

e.         The designated provider or  certificate of assured water supply to which the remedial groundwater will be pledged; and

f.         The name and telephone number of a person the Department may contact regarding the exemption.

K.      A municipal provider withdrawing remedial groundwater that has been determined to be consistent with the management goal under subsection (F) or (H) of this Section or that is con- sistent with the management goal under subsection (J) of this Section shall meter the  remedial groundwater withdrawals separately from groundwater withdrawn pursuant to another groundwater withdrawal authority. The municipal provider shall include in its annual reports, filed under A.R.S. § 45-632, the amount of remedial groundwater withdrawn during the reporting year that is consistent with the management goal

under this Section and the purposes for which the remedial groundwater was used.

Historical Note

New Section made by final rulemaking at 12 A.A.R. 3475, effective September 12, 2006 (Supp. 06-3).