Arizona Supreme Court decides major water case
Development would have nearly 7,000 homes
Arizona’s Supreme Court has cleared the way for a new development of nearly 7,000 homes near the San Pedro River, siding with state water regulators in a hotly contested decision that conservationists say will threaten one of the last free-flowing rivers in the Southwest.
The court backed the conclusion of the Arizona Department of Water Resources that there is an adequate water supply for the proposed development, which would rely on groundwater pumped from the desert aquifer about 5 miles from the river in Sierra Vista.
In its opinion Thursday, a 4-3 majority of justices said the agency isn’t required to consider the federal government’s “reserved” water rights in the area in its determination on the availability of water supplies.
Opponents of planned development said if the decision holds, it will be di-
sastrous not only for the San Pedro and the wildlife that depends on it, but also for other streams and rivers throughout the state.
“If this ruling stands, then this ruling means death to the San Pedro River,” said Robin Silver, a co-founder of the Center for Biological Diversity who has fought the project for years. “We’re going to appeal this ruling into the federal courts, and we’re going to do it as fast as we can.”
Silver said he and others who took the case to court plan to appeal next to the U.S. Supreme Court.
The case focuses on the state water agency’s 2013 approval of an application by Pueblo Del Sol Water Company to supply the proposed development.
Pueblo Del Sol is owned by billionaire David H. Murdock’s company Castle & Cooke Inc., which has residential developments in California, Arizona, Hawaii and other states, and has begun promoting the proposed development in Sierra Vista as a mixed residential-commercial project called “Tribute.”
Opponents initially challenged the agency’s decision in Maricopa County Superior Court, where a judge ruled the agency should have considered potential legal claims that may affect the availability of water, including the federal government’s reserved water rights.
That ruling was tossed out by an appeals court in 2016, and both sides appealed to the Arizona Supreme Court.
The issue of “reserved” water rights held by the federal government — for national parks, national forests and other public lands — has emerged in various legal fights over water in the West.
The San Pedro River nourishes a rich variety of wildlife along its tree-shaded banks, from migratory birds to salamanders to beavers. The San Pedro Riparian National Conservation Area was established in 1988 by Congress and is managed by the federal Bureau of Land Management.
When the conservation area was created, Congress directed the Interior Department to file a claim for a federal water right to fulfill its purpose.
But the federal water right has yet to be quantified, and is one of thousands of water-rights claims tied up in the Gila River adjudication, a complex court case that has been dragging on since 1974 and may take many more years to resolve.
State water regulators concluded that Pueblo Del Sol’s application satisfied the requirements for an adequate water supply under state law, including a requirement that there be sufficient water for at least 100 years.
But Silver and other opponents have argued that pumping more groundwater in an area where the aquifer is already overexploited would undermine the federal water right and affect the flow of the river.
The state Supreme Court opinion, which was written by Justice John R. Lopez IV, touched on the different treatment of surface water and groundwater under state law, as well as the history of provisions under which a county may require a developer to get state certification of an “adequate” water supply before approving a new subdivision.
The court said the Department of Water Resources doesn’t have the authority to quantify the Bureau of Land Management’s water rights, which will have to be decided as part of the larger case over the Gila and its tributaries. The bureau was one of the parties that appealed to the Supreme Court.
“This case is not about the wisdom of the policy underlying the adequate water supply statute. Our task is to discern the statute’s meaning,” Lopez said in the decision.
As the state law now stands, he wrote, the Department of Water Resources “is not required to consider unquantified federal reserved water rights” in its analysis.
Tom Buschatzke, director of the Department of Water Resources, praised the decision.
“I think the court analyzed this issue correctly,” Buschatzke said. The ruling makes clear, he said, that his agency should “limit the speculation” when analyzing whether there are adequate water supplies for a proposed development.
“We’ll just have to wait and see what the adjudication court does with the quantification of the Riparian Conservation Area’s water rights,” Buschatzke said. “It’s too early to say at this point what that’s going to be.”
In the meantime, since the court has upheld the state’s decision on the application, he said, “from our perspective, that allows them to move forward.”
Representatives of Castle & Cooke could not be reached to comment on the ruling.
In a dissenting opinion, Chief Justice Scott Bales argued the state can’t determine that the development will have “legally available” water without evaluating whether the federal water rights will limit the subdivision’s projected water use. He wrote that requiring the Department of Water Resources to consider federal water rights doesn’t require the rights to be formally quantified through a court adjudication.
Bales pointed out the state Supreme Court has already said previously that under the existing system, which allows groundwater pumping for “reasonable use,” Arizona “has consumed far more groundwater than nature can replenish.”
He said the majority opinion allows state water regulators “to ignore the legal inadequacy of a proposed water supply until the problem becomes a reality.”
“The majority prioritizes the interests of subdivision developers over those of homeowners,” Bales said in his dissenting opinion. “But the potential harm suffered by homeowners would be even higher if their property is one day rendered almost worthless due to an inadequate water supply.”
The court’s majority opinion noted that Pueblo Del Sol’s lawyer said in court the company would “have no problem” giving notice to prospective homebuyers that the development’s water rights could eventually be affected by the outcome of the Gila case.
The justices wrote: “We admonish Pueblo to perform on its promise to be forthright with consumers about the potential impact” of the federal water right on the subdivision’s water supply.
Silver said if the decision were to stand, it would have far-reaching implications for disputes over water across Arizona. If the state doesn’t need to consider federally reserved water rights, he said, “that’s a devastating blow to what’s left of the rivers, springs or any publicly owned waters in Arizona.”
Silver said the Supreme Court’s decision ignored the connection between groundwater and surface water, and didn’t address key facts about the state of the aquifer in the Upper San Pedro River Basin.
The aquifer is already in a state of overdraft to the tune of 5,100 acre-feet — or 1.6 billion gallons — per year, he said, pointing to the most recent calculation of the local groundwater deficit as of 2012.
That estimate doesn’t include the more than 300 new wells for which the state has issued permits in the basin since then, Silver said, or the groundwater that the development would pump if fully built — an estimated 3,302 acrefeet, or more than 1 billion gallons, per year.
Silver pointed to an analysis of the groundwater basin by the U.S. Geological Survey as evidence that if the development is built as proposed, the pumping of groundwater would draw down the water table and affect the flow of the San Pedro.
“Water out takes away from water into the river,” Silver said. “It will diminish flows in the river, undoubtedly.”
Silver sued along with Tricia Gerrodette, a Sierra Vista resident who has fought the development for nearly two decades.
“I’m heartbroken,” Gerrodette said by phone shortly after the opinion was published. She said while so many other desert rivers have been lost, this one is a treasure that should be protected.
She said she enjoys walking along the banks looking at birds, spotting toads and marveling at the sound of flowing water.
“It’s a critical migratory pathway for birds, for millions of birds. It’s the one left in the desert. It’s a biodiverse hot spot. It’s a gem. It’s a ribbon of life,” Gerrodette said. “So I’ve spent all these years trying to protect it.”
She said she fears that as the ruling stands, it would allow “lots more depletion of groundwater, which means less water gets to the river. It means it will look like the Santa Cruz — which is dry, except for when it floods.”
Gerrodette said if there are grounds to continue the case, she will join and appeal to the U.S. Supreme Court.
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The case focuses on the state water agency’s 2013 approval of an application by Pueblo Del Sol Water Company to supply the proposed development.