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San Pedro River 

The Arizona Daily Star, May 19, 2014

Judge deals major setback to big Sierra Vista project
By Tony Davis

A planned project for 7,000 homes and apartments in Sierra Vista now sits in legal limbo due to a judge’s ruling overturning state approval of it.

If the ruling is upheld by higher courts, it could have a major impact on growth in Sierra Vista and how the state handles future cases of whether a new development has enough water for 100 years, various observers said Tuesday.

Maricopa County Superior Court Judge Crane McClennen ruled that the Arizona Department of Water Resources erred in concluding that the developer of the Tribute project has adequate water through a water company. The water department found in April 2013 that the Pueblo del Sol Water Co. of Sierra Vista has a legally available supply. Such a finding is necessary for a new Cochise County development.

While observers expect the ruling to be appealed, it was still a clear first-round victory for the federal Bureau of Land Management and environmentalists. They sued to prevent the project from pumping groundwater out of concern that it would dry up the San Pedro River. The San Pedro is considered by many scientists to be the best remaining cottonwood-willow-tree riparian area in the Southwest.

McClennen’s order, released Tuesday, mainly recounted both sides’ views and concluded that the court “adopts those authorities and arguments” by the plaintiffs.

“You couldn’t ask for a more sweeping victory when the judge says that the court adopts the references and the citations submitted by the plaintiffs,” observed Robert Glennon, a University of Arizona law professor and water expert. “The court is seeing in the Department of Water Resources a decided lack of interest in rigorous enforcement of the Groundwater Management Act. The plaintiffs had good, well-reasoned briefs that said, ‘Very simply, the department is not doing its job.’ ”

The key issue in the case is whether the state must limit pumping in the San Pedro area to protect the river’s congressionally mandated federal water rights — although it’s not yet determined how much water rights the river has.

McClennen noted that during a hearing on the case, he asked a Pueblo del Sol attorney what would happen if in 20 years it was determined that the development’s pumping interfered with federal rights. The attorney, William Sullivan, replied that the water company “would have to make up the difference from some other source, such as trucking it in,” the ruling said.

“It thus appears if the purpose of the 100-year requirement is to assure home buyers that water will be available, the determination (of) whether water is legally available should include an assessment of potential and existing legal claims against that water,” McClennen wrote.

The state water agency said only, through a spokeswoman, that “our staff is currently reviewing the court’s decision.” BLM officials and Sullivan, a Phoenix attorney, didn’t return phone calls seeking comment.

Norman James, an attorney for homebuilding groups that filed a friend-of-the-court brief, said he believes McClennen’s decision will be appealed.

“This decision has a significant impact on the administration of the groundwater code and the water-adequacy program,” he said.

That program covers areas such as Cochise County lying outside state-run groundwater-management areas. But James said this case could affect how the state runs its assured-water-supply program, which requires developers in urban areas such as Tucson to have a 100-year assured supply.

“The federal reserved rights are federal, but the federal water rights have to be adjudicated,” James said. “What BLM is attempting to do here is to make an end run around the adjudication.”

Mary Jacobs, an assistant Sierra Vista city manager, said the city “will be reviewing this decision with our legal counsel in the coming weeks ... to see whether this will have significant impacts on the city in the future.”

Herb Guenther, a former state water director, said if this ruling is upheld, it could limit Sierra Vista’s growth.

“Without an adequate water supply, despite how hard the Sierra Vista area has tried to reduce demands, if the court upholds the right of the environment even prior to complete water-rights adjudication, that would definitely handicap future development,” Guenther said.

During Guenther’s term as water director from 2003 to 2011, he wrote an opinion on the general Sierra Vista-San Pedro water-adequacy issue that was similar to the state’s 2013 ruling on Tribute.

Despite that, Guenther said Tuesday that the judge probably made the right decision. Guenther said his decision was based on advice from the department’s attorneys and “other notable water attorneys” that state laws don’t allow for environmental impact reviews in determining if a water supply is adequate. “But I’m not the judge, looking at the longer-term impact, projecting what he feels will happen,” Guenther said.

A jubilant Robin Silver, one of the environmentalist plaintiffs, said: “For the first time, a judge recognized that developers can’t steal water from the river. An adequate water supply does not exist in Sierra Vista without stealing from the river.”

The other environmentalist plaintiff, Tricia Gerrodette, said she hopes the state does an analysis of the project’s impacts on the river rather than spend tax dollars to fight the case further.

“The judge isn’t saying the project will impinge on the river. That’s not his job,” Gerrodette said. “He’s saying, ‘ADWR, go back and analyze.’ ”

© 2014 Arizona Daily Star.

This article originally appeared here.

Photo © Paul S. Hamilton