5 takeaways from the water-rights ruling over a planned Sierra Vista development

Sierra Vista’s city government won’t wait for a decision on an appeal of last week’s state Supreme Court ruling clearing the way for a major housing development before it issues permits for it.

But for different reasons, Sierra Vista City Manager Chuck Potucek also doesn’t expect to be issuing permits soon for the 7,000-home Tribute project, planned for five miles west of the fragile San Pedro River.

Legal issues aside, the city’s economy is still sluggish, a decade after the Great Recession, and “the cars aren’t lined up and down Highway 90 to move in yet,” Potucek said Friday.

This apparent disconnect between the Tribute project’s legal status and its economics is one of five key takeaways from last Thursday’s Arizona Supreme Court decision favoring the development.

In a 4-3 ruling, the high court said that the Arizona Department of Water Resources doesn’t have to consider the impacts of Tribute’s groundwater pumping on federally reserved water rights on the San Pedro. Two environmentalists and the U.S. Bureau of Land Management had filed suit, arguing that the pumping could jeopardize river flows and potentially dry it up.

Here are five takeaways from the ruling:

1. Tribute’s permits will come when the developer is ready for them — not the courts.

Environmentalist Robin Silver, one of the losing plaintiffs in the case, has said he plans to appeal Thursday’s ruling directly to the U.S. Supreme Court, arguing that, “The state of Arizona is completely disregarding federal water rights in spite of their requirement in federal law to do so.”

But Potuck said, “We wouldn’t have any reason to do that” — wait for an appeal.

“Anybody can appeal anything. From what I understand. I’m not sure whether there were any federal issues heard in this case. It would take a while for the Supreme Court to decide if they will take the case. Nobody would know the outcome.”

Tribute developer Castle and Cooke Inc. long ago got a specific plan for their project OK’d by the Sierra Vista City Council. Before construction can begin, the developer must obtain plats — formal layouts of the project — from the city. So far, the company has sought a plat only for a commercial development there, Potucek said.

Castle and Cooke senior vice president Rick Coffman wasn’t in his office when the Arizona Daily Star called Friday afternoon. But Potucek said, “The market is still slow. We’re seeing a pickup in existing home sales. (But) I don’t think we’ve seen any significant increases in new construction or new permit activity yet.”

While Sierra Vista was once considered a booming city due to growth at the Army’s Fort Huachuca, Cochise County as a whole has lost population of late, from about 131,000 in 2010 to 126,000 in 2017, census figures show. While the legal uncertainty has kept Castle and Cooke from marketing Tribute, the primary cause of the region’s economic slump was federal cutbacks at the fort, Potucek said.

2. Gov. Doug Ducey’s judicial appointments made a big difference in the case.

He’s appointed three State Supreme Court justices since taking office in 2015. Two, John Lopez and Andrew Gould, helped provide the court’s 4-3 majority in favor of ADWR and Tribute. The third appointee, Clint Bolick, dissented.

Lopez and Gould were appointed by Ducey to fill new vacancies on the bench that the Legislature created in the spring of 2016. Bolick was appointed in January 2016,

Environmentalist plaintiff Silver, who works for the Tucson-based Center for Biological Diversity, and University of Arizona Law professor Robert Glennon, said the ruling is out of sync with the governor’s stated goal of better management of Arizona water resources.

“The governor has made much of the fact that we are a state that knows how to do water. We care about water. We are going to do it well.

“Consumer protection is one of the things he thinks the state should be doing. This result is completely inconsistent with what the governor wants,” said Glennon, author of two books on water and co-author of a friend-of-the-court brief filed on behalf of the plaintiffs in this case.

Silver said of Ducey, “He’s the one who appointed the judges who gave away the San Pedro.”

But Ducey spokeswoman Elizabeth Berry expressed support for the ruling.

“We’re pleased that the court ruled in favor of the position presented by ADWR and that the court recognized the consumer protections in existing law. This ruling follows current law and recognizes the need for balancing development efforts with consumer protections.

“The Governor’s Office will continue to champion a strategic conservation plan that secures our state’s water future, and protecting consumers will be a priority in these efforts,” said Berry.

3. Is this it for the Southwest’s last free-flowing desert river?

Environmentalist plaintiff Silver has no doubt. He points to continued estimates by the U.S. Geological Survey of an approximate 5,000 acre-foot deficit between groundwater pumping and recharge in the Upper San Pedro River area. That doesn’t include the groundwater that the private Pueblo del Sol Water Co. will pump for this project.

He also pointed to another USGS report that concluded 20 to 30 percent of the water pumped for Tribute would otherwise flow into the San Pedro.

By Silver’s estimate, this project will, every year, pump the equivalent of one-third of the water that otherwise would naturally recharge the Upper San Pedro Basin aquifer.

Cochise County’s population could decline more if this ruling holds, Silver said. If the region’s groundwater deficit keeps growing, Fort Huachuca will be at risk of losing most of its missions in the next round of federal base closures, he said.

Officials for Sierra Vista and Cochise County aren’t that pessimistic. They note, for instance, that Tribute’s developer has agreed to use wastewater treated at a small treatment plant it will build to water an existing golf course in the area, replacing groundwater pumping. That wastewater will also be used on parks and landscaping along roads in the subdivision. Low-water-use landscaping and plumbing fixtures will also be used in the subdivision.

The region’s biggest water-saving effort is a continuing plan for construction of recharge basins along the river, on top of the city’s existing Environmental Operations Park, north of the Tribute project. Two other basins, lying near the Mexican border along the river, are now capturing and recharging stormwater runoff. A fourth recharge project is being designed in the Sierra Vista area.

These projects and three other, major land purchases along the San Pedro and a major tributary — all financed by Fort Huachuca — together comprise what’s known as the Cochise Conservation and Recharge Network. The land purchases prevented thousands of acres from being developed.

But city officials and the Nature Conservancy, which has been heavily involved in the effort, don’t disagree with activist Silver’s argument that it won’t be enough to keep the river from ever running dry.

These projects will help sustain the river’s flows for several decades, but additional water-conservation measures will be needed to ensure that the river flows longer, said Holly Richter, the conservancy’s Arizona water-projects director.

“I don’t think there’s any silver bullet,” said Potucek, the city manager. “We have to explore every possible potential solution.”

4. The Bureau of Land Management is the unknown quantity in a potential appeal. That’s particularly true during the Trump administration, which has sought to roll back many federal environmental protections and defer to states on these issues.

Law professor Glennon and Kathy Ferris, an attorney and a former ADWR director, see important federal water-rights issues that would justify a federal legal case. But the BLM has declined to comment on its intentions so far.

“The Bureau of Land Management is currently reviewing the court’s opinion to determine appropriate next steps,” BLM spokeswoman June Lowery said Friday.

She noted, however, that this case highlights the importance of quantified federal reserved water rights. Ultimately, the Gila River General Stream Adjudication will determine how much in the way of water rights are reserved for the federal San Pedro Riparian National Conservation Area, Lowery said.

The adjudication is a massive, prolonged state court process that seeks to determine what water rights landowners and other parties in the entire Gila River Basin can legally claim. It’s now well into its fourth decade.

A trial in the part of the adjudication covering the San Pedro is scheduled to begin in January in Maricopa County Superior Court. The BLM is seeking 44,000 acre-feet of water rights in the adjudication, a request that has troubled many local landowners and other area water users.

In the past, federal law and federal courts have said that these kind of water-rights cases should be handled first by state courts, Glennon said.

“The assumption is that state courts have capacity to protect federal rights, but that’s simply not happened here,” Glennon said. “This case is Exhibit A. I would be surprised if the Department of Justice didn’t just say this is an opportunity we’ve been looking for.”

5. This case is consistent with Arizona’s longstanding tradition of refusing to limit groundwater pumping to preserve river flows.

That position dates back to court decisions as long ago as the 1930s, said Tom Buschatzke, director of the Arizona Department of Water Resources. While most hydrologists — those who study the science of water — agree that groundwater pumping can dry up surface flows, courts and legislatures haven’t turned that principle into law.

Buschatzke said this was not directly at issue in the Tribute case — it was a matter of whether state law required his agency to look at such impacts at all.

Efforts to protect rivers from water pumping in the Legislature, all unsuccessful, date back to the time when Rose Mofford was governor back in the late 1980s, said Sandy Bahr, director of the Sierra Club’s Grand Canyon chapter.

“There was a riparian task force. There have been bills that included limits on groundwater pumping within one-quarter mile of riparian areas. Those were defeated by cattle growers and others,” Bahr said. Just this year, a bill dealing with the ecological value of water failed to get a hearing.

“We have consistently asked the state to recognize the connections between ground and surface water. Our laws violate the laws of physics,” Bahr said.

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