News Advisory : February 6, 2006
ADEQ breaks law to benefit Sierra Vista developers
Phoenix , Ariz. – The Arizona Department of Environmental Quality (ADEQ) issues permits for Sierra Vista area construction projects without required environmental studies and mitigation. This practice continues in spite of a court ruling finding these actions illegal.
On December 5, 2002, ADEQ assumed responsibility from the U.S. Environmental Protection Agency (EPA) for the issuance of construction permits under the Clean Water Act’s Section 402 National Pollutant Discharge Elimination System (NPDES). NPDES permits are required for all construction projects discharging storm water into “waters of the U.S.”
The San Pedro River is a “water of the U.S.” NPDES permits are necessary for all construction projects within the San Pedro River watershed. Environmental impact studies are also necessary as these construction projects promote the groundwater-dependent growth threatening the San Pedro.
Since Endangered Species depend on the San Pedro River for survival, protective mitigation must also be provided for the construction projects in the watershed receiving NPDES permits. Both EPA and ADEQ promised to maintain seamless lawful protection for the San Pedro and its dependent Endangered Species upon transfer of the NPDES permitting program to ADEQ.1
On September 13, 2002, USFWS officials had expressed their concerns directly to ADEQ officials “…about issues of water quantity on species such as Huachuca water umbel…”2 The Huachuca water umbel is one of the endangered species dependent on the San Pedro for its survival.
Since the December 5, 2002 transfer, ADEQ has approved construction of at least 2,693 new housing units in the Sierra Vista area.3 No required mitigation has been provided. The 2,693 housing units translate into approximately 6,544-7,136 new groundwater-dependent people based on Census 2000’s Sierra Vista-area average household size of 2.43-2.65 people/household.4 No environmental impact studies have been done to access the effects of these actions.
On April 2, 2003, the Center for Biological Diversity (CBD) and Defenders of Wildlife appealed to the Ninth Circuit Court of Appeals to remedy EPA and ADEQ broken promises regarding San Pedro River protection. On August 22, 2005, the Court found EPA and ADEQ actions illegal.5
In spite of this ruling, ADEQ refuses to stop the permitting and refuses to require mandatory mitigation. Instead of respecting the Court’s finding, ADEQ chooses to rely on a legal technicality allowing appeals to be completed before the ruling becomes law. Since the August 22, 2005, ruling, ADEQ has approved 1,220 new housing units for approximately 2,965-3,233 new groundwater- dependent people.6
The San Pedro River is the last surviving free-flowing, undammed desert river in the Southwest.7 Congress highlighted the San Pedro’s importance in 1988 by establishing the San Pedro Riparian National Conservation Area.8
Excessive, unmitigated and increasing, local groundwater pumping from the Sierra Vista area aquifer threatens the San Pedro.9 The groundwater aquifer underlying the Sierra Vista area is the sole source of water for the local population.10 Groundwater pumping from this aquifer deprives the San Pedro River of surface flow due to the existence of a direct hydrological connection between the water in the area’s underground aquifer and the surface water, or actual stream flow, in the river.11 The San Pedro stream flow reflects the surface of the area’s groundwater aquifer, or the water table itself.12
San Pedro River stream flow during the driest times of the year seeps directly from the groundwater aquifer into the river.13 As groundwater pumping lowers the aquifer level or water table, stream flow is diminished.14 San Pedro River base flow, or water in the stream during the driest time of the year, is significantly disappearing.15 This past July, the San Pedro went dry near Tombstone for the first time since recordings began more than 100 years ago.16
The Sierra Vista area’s yearly deficit overdraft is now more than -12,050 acre-feet/year.17 An adequate supply of groundwater does not exist in the area to satisfy current reserved water rights nor any future claims.18 Total federal reserved water rights in the watershed account for at least 103 percent of the area’s entire annual natural recharge.19 The groundwater supply from this aquifer is over-allocated.20
According to the ADEQ website (http://www.azdeq.gov/function/about/dir.html), ADEQ Director Steve Owens “provides executive leadership for ADEQ and sets overall agency policy and priorities….Before joining ADEQ, Steve was a practicing environmental attorney in Phoenix for 14 years.”
Dr. Robin Silver, CBD Board Chair: 602.246.4170
1 USFWS 2002c
ACOE 1970. Summary of Ground Water Supply Conditions, Fort Huachuca, Arizona, Department of the Army, Sacramento District, Corps of Engineers, Sacramento, California, July 1970.
ACOE 1974. Report on Water Supply, Ft. Huachuca and Vicinity, Arizona, Main Report, U.S. Army Engineer District, Los Angeles Corps of Engineers, March 29, 1974.
ACOE 2005. Memorandum for Record. Subject: Compilation and Analysis of April 1995 to April 2005 Water-level Data at Monitoring and Test Wells, Fort Huachuca, AZ, CEIWR-HEC-HHT; Jon Fenske, P.E., Hydrologic Engineer, U.S. Army Corps of Engineers Los Angeles Engineer District, May 16, 2005.
ADEQ 2005. Database, Arizona Pollution Discharge Elimination System General Construction permits, December 8, 2005.
ADWR 1988. Putman, Frank, Kim Mitchell, Greg Bushner, “Water Resources of the Upper San Pedro Basin, Arizona,” Hydrology Division, Arizona Department of Water Resources, Phoenix, Arizona, July 1988.
ADWR 1991. Arizona Department of Water Resources, Preliminary hydrographic survey report for the San Pedro River watershed. Volume 1: General Assessment. Phoenix, Arizona. 548 pp.
ADWR 1992a. Certificate of Water Right, State of Arizona, County of Cochise, Certificate No. 90103.0000, Arizona Department of Water Resources, April 3, 1992.
ADWR 1994b. Upper San Pedro River case study, Arizona Riparian Protection Program, Legislative Report, Arizona Department of Water Resources, Pages 147-208, July 1994.
ADWR 1996b. Corell, S. W., et al. 1996. A groundwater flow model of the Sierra Vista subwatershed of the Upper San Pedro Basin—southeastern Arizona. Phoenix: Arizona Department of Water Resources, Hydrology Division, Modeling Report No. 10. December 1996.
AGFD 1993. Arizona Riparian Inventory and Mapping Project, Arizona Game and Fish Department, Phoenix, December 1, 1993.
American Birding Association 1995. American Birding Association, Inc., “Winging It”, Volume 7, Number 10, October 1995.
Arizona Highways 1989. “San Pedro Riparian Area,” Sam Negri, Arizona Highways Magazine, April 1989.
ASL 1994. ASL Hydrologic & Environmental Services in conjunction with R. Allan Freeze Engineering, Inc., SIERRA VISTA SUBWATERSHED HYDROLOGY PRIMER, produced for the City of Sierra Vista, Bella Vista Water Company, Inc. and Pueblo Del Sol Water Company, December 1994.
BLM 1987. Jackson, W., T. Martinez, P. Cuplin, W.L. Minckley, B. Shelby, P. Summers, D. McGlothlin, and B. Van Haveren. 1987. Assessment of water conditions and management opportunities in support of riparian values: BLM San Pedro River Properties, Arizona. U.S. Department of Interior, Bureau of Land Management. 180 pp.
BLM 1991. Federal Reserve Water Rights Claim, San Pedro Riparian National Conservation Area, Statement of Claimant, Number 39-13610, BLM, Safford District Office, June 3, 1991.
CBD 2004e. Correspondence from CBD to Arizona Attorney General Terry Goddard, U.S. Attorney for Arizona Paul Charlton, U.S. Postal Inspection Service Phoenix Division Acting Officer in Charge Pete Zegarac; RE: 1. Arizona Department of Water Resources (ADWR) falsely represents the adequacy of the Sierra Vista area’s water supply to consumers and lenders.; 2. Assistant Arizona Attorney General Mary Mangotich Grier believes that concern regarding dishonest certification of water adequacy by ADWR for Sierra Vista area developers is “a consumer disclosure issue.”; 3. ADWR’s false statements to consumers violate Arizona’s consumer fraud statutes.; 4. Since these false statements to consumers affect Federal property and transit via U.S. mail, they also violate Federal criminal statutes regarding “Fraud and False Statements” and “Mail Fraud.”; 5. Request for action by the Arizona Attorney General, the U.S. Attorney General for Arizona, and the U.S. Postal Inspection Service Phoenix Division Officer in Charge to protect consumers and lenders in the Sierra Vista area by stopping these violations of law.; September 7, 2004.
CBD v. DoD 1999. Order, Center for Biological Diversity et al. v. Donald H. Rumsfeld, Secretary of Defense, et al., CIV99-203 TUC ACM, 198 F. Supp. 2d 1139, April 8, 2002.
CEC 1999b. “Sustaining and Enhancing Riparian Migratory Bird Habitation on the Upper San Pedro River, Final Draft,” Commission for Environmental Cooperation San Pedro Expert Team, March 1999.
Census 2000. Profiles of General Demographic Characteristics 2000, 2000 Census of Population and Housing, Arizona, U.S. Census Bureau, U.S. Department of Commerce, May 2001.
CEQ 1981. David Sheridan, Desertification of the United States, Council on Environmental Quality 1981.
Cochise County 2003. Cochise County Water Assessment and Strategy for The Sierra Vista Sub-Watershed of the Upper San Pedro River, Cochise County, September 09, 2003.
Defenders of Wildlife and CBD v. EPA and ACOE 2002. Defenders of Wildlife and Center for Biological Diversity v. U.S. Environmental Protection Agency, No. 03-71439, EPA No. 67- Reg. 79629; and v. U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency, No. 03-72894, No. CV-02-01195-CKJ OPINION; U.S. Court of Appeals for the Ninth Circuit; August 22, 2005.
Department of the Interior 2005. “Water Management of the Regional Aquifer in the Sierra Vista Subwatershed, Arizona – 2004 Report to Congress, Prepared in consultation with the Secretaries of Agriculture and Defense and in cooperation with the Upper San Pedro Partnership in response to Public Law 108 – 136, Section 321,” U.S. Department of the Interior, March 30, 2005.
Fort Huachuca 2002a. Statement of Claimant Form for Other Uses Amendment, Superior Court of Maricopa County, United States Notice of Filing of Amended Claim to Water rights in the Contested Matter In re Fort Huachuca, W-1-11-605, in re the General Adjudication of All Rights to Use Water in the Gila River System and Source, In the Superior Court of the State of Arizona in and for the County of Maricopa, Fort Huachuca, Arizona, January 14, 2002.
Fort Huachuca 2002c. Programmatic Biological Assessment for Ongoing and Programmed Future Military Operations and Activities at Fort Huachuca, Arizona, Environmental and Natural Resources Division, Directorate of Installation Support, U.s. Army Garrison, Fort Huachuca, Arizona, July 2002.
National Geographic 2000. “ A Special Place, The Patience of a Saint San Pedro River,” Barbara Kingsolver, National Geographic, April 2000.
New York Times 1999. “In Arizona Desert, a Desert Oasis in Peril,” Jon Christensen, New York Times, May 4, 1999.
Sierra Vista 2005. UPDATE on Developments & Projects as of September 20, 2005; City of Sierra Vista; http://www.ci.sierra-vista.az.us/PDF/projects.pdf; January 2, 2005.
SWCBD v. DoD 1994. SWCBD v. William Perry, U.S. Secretary of Defense, et al., CIV 94-1402 PHX PGR July 7, 1994.
U.S. Army 2003b. Information Paper, Subject: District Court Decision on Fort Huachuca’s Biological Opinion, Col. Craig Teller, Chief, JALS-EL, U.S. Army, May 12, 2003; Response to the Center of Biological Diversity’s May 25, 2003, Freedom of Information Act, Directorate of Information Management, Department of the Army, United States Army Garrison, Fort Huachuca, Arizona, May 12, 2003.
U.S. Congress 1988. Arizona-Idaho Conservation Act, U.S. Congress 1988 (S. 2840), 16 U.S.C. § 460xx(a), U.S. Congress, November 18, 1988.
USFWS 1999e. U.S. Fish and Wildlife Service, Biological Opinion concerning activities, authorized, carried out, or funded by the Department of the Army at and near Fort Huachuca, Arizona, for the next 10 years, #AESO/ES 2-21-98-F-266, October 27, 1999.
USFWS 2000. Correspondence from David L. Harlow, Field Supervisor, U.S. Fish and Wildlife Service, Phoenix, Arizona; to Ms. Alexis Strauss, Director, Water Division, U.S. Environmental Protection Agency, San Francisco, California; Regarding, “…attention current issues in the upper San Pedro River basin, Cochise County, Arizona, in regard to development and groundwater pumping, and request that the Environmental Protection Agency carefully consider the potential effects of issuing Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) permits in Sierra Vista or other portions of the upper San Pedro River watershed…”; April 27, 2000.
USFWS 2002. U.S. Fish and Wildlife Service, Biological Opinion concerning impacts that may result from activities authorized, carried out, or funded by the Department of the Army at and near Fort Huachuca, Arizona. #AESO/ES 2-21-02- F-229 August 23, 2002.
USFWS 2002b. Summary of meeting with U.S. EPA, State of Arizona DEQ, and U.S. Fish and Wildlife Service regarding ESA Section 7 Consultation on EPA’s proposed approval of the AZNPDES program, September 13, 2002, Phoenix, AZ; September 16, 2002.
USFWS 2002c. Biological Opinion, 02-21-02-F-0268, regarding the U.S. Environmental Protection Agency’s approval of the State of Arizona’s Arizona Pollutant Discharge Elimination System and the impacts that may result from the program transfer; Correspondence from Mr. Steven L. Spangle, Field Supervisor, U.S. Fish and Wildlife Service, Phoenix, Arizona; to Mr. Terry Oda, Clean Water Act Standards and Permits Office, U.S. Environmental Protection Agency, San Francisco, California; December 3, 2002.
USGS 1999a. Pool, D.R, and Alissa L. Coes, Hydrogeologic Investigations of the Sierra Vista Subwatershed of the Upper San Pedro Basin, Cochise County, Southeast Arizona, Water-Resources Investigations Report 99-4197, USGS, 1999.
USGS 1999b. “Ground Water and Surface Water, A Single Resource, U.S. Geological Survey Circular 1139,” by Thomas C. Winter, Judson W. Harvey, O. Lehn Franke, William M. Alley, Denver, Colorado, USGS, 1999.
USGS 2004a. U.S. Geological Survey (USGS) Website, http://nwis.waterdata.usgs.gov/nwis/discharge?site_no=09471000, January 8, 2004.
USGS 2004b. Monthly Streamflow Statistics for Arizona, USGS 09471000 SAN PEDRO RIVER AT CHARLESTON, AZ.; Monthly mean streamflow, in ft 3/s; USGS; http://nwis.waterdata.usgs.gov/az/nwis/monthly/?site_no=09471000&agency_cd=USGS; Monthly Streamflow Statistics for Arizona,
USGS 09470500 SAN PEDRO RIVER AT PALOMINAS, AZ.; Monthly mean streamflow, USGS; http://nwis.waterdata.usgs.gov/az/nwis/monthly/?site_no=09470500&agency_cd=USGS; December 2, 2004.
USGS 2005a. USGS Website, http://waterdata.usgs.gov/az/nwis/gwlevels?search_criteria=lat_long_bounding_box&submitted_form=introduction; Lat-Long box (DMS): North Latitude, 313313; South Latitude, 313310; West Longitude 110826; East Longitude 110822; Well #4, 313312110082301; Well #5, 313312110082303; Well #2, 31331210082501; Well #3, 313312110082502; June 2, 2005.
USGS 2005b. U.S. Geological Survey (USGS) Website, Daily Streamflow for Arizona, USGS 09471000 SAN PEDRO RIVER AT CHARLESTON, AZ.; through September 30, 2004; http://nwis.waterdata.usgs.gov/az/nwis/discharge/?site_no=09471000&agency_cd=USGS; June 6, 2005.
USGS 2005c. USGS 09471000 SAN PEDRO RIVER AT CHARLESTON, AZ.; Data Category: Streamflow Measurements; USGS Water Resources; Daily Streamflow; Surface-water: Daily streamflow; 3/29/1904 – 9/30/04; USGS website http://nwis.waterdata.usgs.gov/az/nwis/discharge/?site_no=09471000&agency_cd=USGS; July 8, 2005.
USGS 2005d. USGS 09471000 SAN PEDRO RIVER AT CHARLESTON, AZ.; Data Category: Real-time; USGS Water Resources; Output format: table; Days: 7, July 2, 2005 00:00 through July 8, 2005 19:00; USGS website: http://nwis.waterdata.usgs.gov/az/nwis/uv?format=html&period=7&site_no=09471000; July 8, 2005.
USGS 2005e. Site Map for Arizona; USGS 09471000 SAN PEDRO RIVER AT CHARLESTON, AZ.; USGS Water Resources; USGS website: http://nwis.waterdata.usgs.gov/az/nwis/nwismap/?site_no=09471000&agency_cd=USGS; July 8, 2005.
USGS 2005g. USGS Water Resources, Data Category: Real-time; Geographic Area: Arizona; Babocomari Gage, USGS 09471400 BABOCOMARI RIVER NEAR TOMBSTONE, AZ.; 6/10/2005 00:00 through 7/11/05 10:30; http://waterdata.usgs.gov/az/nwis/uv?format=html&period=31&site_no=09471400; July 11, 2005.
USGS 2005h. USGS 09471000 SAN PEDRO RIVER AT CHARLESTON, AZ.; Data Category: Real-time; USGS Water Resources; Output format: table; Days:18, July 2, 2005 00:00 through July 19, 2005 19:00; USGS website: http://nwis.waterdata.usgs.gov/az/nwis/uv?dd_cd=10%2C11%2C23&dd_cd=10&dd_cd=
USGS 2005i. U.S. Geological Survey (USGS) Station Number 09471000 San Pedro River at Charleston, AZ., Computed Unit, Verified Corrections, September 14, 2005.
USPP Technical Committee 2005. “CHARLESTON STREAMGAGE SUMMARY REPORT,” Upper San Pedro Technical Committee’s “No Flow Workgroup,” September 9, 2005.