Governor Ducey’s July Surprise for Key Sunsetting Arizona Environmental Programs

by Lucas J. Narducci and Amanda Reeve

There is no question that the Coronavirus Disease 19 (“COVID-19”) pandemic has been taking its toll on public health, and it is doing so in more ways than some folks may be aware. Environmental programs which are instrumental in protecting the public health in Arizona; but are statutorily scheduled to sunset – the equivalent of expiring – on June 30, 2020 are examples of the endangerment on public health being caused indirectly by COVID-19.  However, in a July surprise by Governor Doug Ducey, those key environmental programs and funds were extended via an Executive Order signed on July 1, 2020.

The following environmental quality programs and fund are those which were to sunset on June 30th. The Voluntary Remediation Program (“VRP”) which provides a process for entities, in cooperation with the Arizona Department of Environmental Quality (“ADEQ”), to voluntarily investigate and perform remediation efforts on soil and groundwater at contaminated sites. The Total Maximum Daily Load (“TMDL”) Program which serves the purpose of implementing plans designed to bring an impaired stream or lake to achieving applicable surface water quality standards.  The Safe Drinking Water Fund (“SDWF”) that serves as the funding mechanism utilized by ADEQ to ensure that public water drinking systems are regulated and maintained in accordance with the federal regulations.  The Monitoring Assistance Program (“MAP”) which requires ADEQ to perform frequent collection and analysis of samples from public water systems to ensure the systems maintain compliance.

Historically, the Arizona State Legislature has had these programs and fund sunset every so often as a means to more closely monitor the efficiency and functionality of each.  However, this past legislative session, after years of insistence by the business community, Representative Gail Griffin (R-LD14) agreed to sponsor House Bill 2456: Environmental Quality Programs; Terminations; Repeals (“HB 2456”), which would permanently repeal those sunset dates. HB 2456 had passed through the House Natural Resources, Environment and Energy Committee with unanimous support. It was voted out of the House Chamber with unanimous support as well.  It even passed through the Senate Environment and Natural Resources Committee with full support and made it on the Senate Consent Calendar without any objection.  HB 2456 was primed to receive a passing vote in the Senate and be sent to the Governor.

Due to the rapid onslaught of this global pandemic, the Arizona Legislature, like so many other entities, found themselves unsure and in disagreement over how to deal with the contemporarily unprecedented situation. Minimizing potential for exposure to COVID-19 of its members and the public was the priority; and as such, the legislative session quickly paused and subsequently adjourned just as abruptly – instantly killing many bills unexpectedly, including HB 2456.

Had the Senate Chamber been able to vote on HB 2456, the termination dates of the various key environmental programs would have been permanently repealed thereby preventing the unintentional sunsetting of these programs. As it stands currently, the Governor’s Executive Order extends the sunset date from June 30. 2020 to March 31, 2021, or at least until the Legislature acts on extending or terminating the programs and/or funds.

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