A federal appeals court ruling strips Arizona of its authority to issue water discharge permits, a move that an attorney for homebuilders said could paralyze development in the state.
In a divided ruling Monday, the 9th U.S. Circuit Court of Appeals said it was a mistake for the Environmental Protection Agency in 2002 to cede its authority to issue these permits to the state Department of Environmental Quality.
The court agreed with environmental groups that the action failed to consider the effect on endangered and protected species in giving that responsibility to the state.
The decision, unless overturned, removes the authority of the DEQ to issue any more permits for water discharge. That mainly affects the more than 20,000 general permits issued every year each time a developer wants to bulldoze property in any way that will affect storm water runoff.
But DEQ director Steve Owens said the decision may also invalidate permits issued by his agency for projects already under way. That would be based on the court’s decision that the EPA acted illegally in letting the state deal with the issue.
"We could have a number of projects just stop," said Norman James, a Phoenix attorney for the National Association of Home Builders.
He said the decision means the state can’t issue the permits that are necessary for any project of at least an acre. But James said there no longer is any authority for the EPA to issue those general permits in Arizona.
James said he intends to appeal the decision.
Monday’s ruling is a big victory for two environmental groups who said Arizona state law — and the procedures used by the DEQ — provide less protection for endangered and threatened species than federal statutes.
Owens conceded that is true. But Owens said he still believes his agency provides "adequate" protection.
Owens said if Monday’s ruling holds, Arizona legislators may need to alter state law to give his agency more authority.
Attorney Michael Senatore of the Defenders of Wildlife said federal laws and rules require the EPA to get input from other federal agencies, such as the U.S. Fish and Wildlife Service, about potential harm to species before issuing permits. But when the EPA transferred its authority to the DEQ in 2002, the federal agency imposed no such requirement on the state.
Appellate Judge Marsha Berzon, who wrote Monday’s majority ruling, said this is critical.
She said such consultation in the past has led to measures protecting various endangered species, including the Pima pineapple cactus, the razorback sucker and the cactus ferruginous pygmy owl.
