Sunday, December 28, 2008

(Tucson) Community Forum on Land Use Planning

A few weeks back I attended a forum (here in Tucson) put on by the Urban Land Institute that was called: "Crafting Tomorrow's Built Environment", a community conversation on regional land use. The forum was developed primarily at the behest of the Tucson Regional Town Hall and the Southern Arizona Leadership Council, local heavy hitters in the areas of economic development, policy, and strategic planning.

The main speakers at the event included Grady Gammage Jr., from the Phoenix law firm of Gammage & Burnham and the Morrison Institute for Public Policy at Arizona State University and Robert Grow, another attorney, from Salt Lake City and the main organizer for Envision Utah - a process recently undertaken to plan future growth in the Wasatch Front area of Utah.

The main message presented was that if Tucson really wants to plan for future growth in the region (or even within individual cities/towns), the best approach is to think big. As in big picture, grand ideas, comprehensive - a "visioning" process, as Robert Grow calls it to distinguish it from a mere planning process. Another key message (not embraced by all in attendance) was that the region will continue to grow - the only real question is how and where that growth will occur

There seemed to be consensus among the attendees that this visioning process is what the Tucson region should pursue. It was probably a pre-determined outcome - the folks in attendance were likely there because of their preference for managed growth (myself included). But I think the visioning process is not really about planning growth (why its not just called a comprehensive plan) but rather about the community deciding how it envisions its overall appearance at some future date in terms of housing, transportation, open space, sense of community, arts, entertainment, etc. This vision is then used to guide the growth planning process.

So what is going to come of this? At the end of the day, plans were somewhat firmed to develop a process whereby the community would be given input on how such a visioning process could be instituted in Tucson. After the process is instituted, discussions would presumably begin looking at how the process would occur, who would be involved, and what the outcome would be. This is supposed be kicked off in early 2009 with a series of public meetings.

What is this process likely to entail? I think everyone is waiting to find out the answer to that. I could sense the tension in the room between the people who would like to see this handled by a small, select group of power players - the usual political, financial, construction, and other growth industry representatives - and those who want an opportunity for input from all (especially community activist and environmental groups, who with some honesty, often feel excluded from these processes).

One of the main examples from the Envision Utah process was the need for an inclusive process creating buy-in from many segments of the community. It sounds really messy and time-consuming, but a sense of community consensus is the only way this type of process can be successful. The hardest part is that it requires that everyone come to the table with an open mind and willingness to listen to the concerns of all parties, especially those they don't agree with. Also, everyone must be willing to compromise and accept that they will not leave the process believing they have won a victory - everyone should feel like they have accomplished something and given something up at the end of the day. Successful compromise results in no clear winners or losers - except the community as a whole should be a clear winner in this case.

I'll be discussing this more as the visioning process begins to unfold.

Sunday, December 21, 2008

AZ Corporation Commission approves CC&N for Pravada development near Kingman

From the Las Vegas Review Journal (read the article here):

The Arizona Corporation Commission, by a 4-1 vote shortly before 11 p.m., approved a Certificate of Convenience and Necessity for the Perkins Mountain Utility and Perkins Mountain Water Company to serve the 25,000 home and golf course development called Pravada.
Commissioner Kristin Mayes cast the dissenting vote after failing to pass an amendment that would have stalled construction of the golf course until enough homes were occupied to generate effluent to water the course. She said it would be "immoral" for Rhodes to waste groundwater on a golf course in the parched desert.
Chairman Mike Gleason and Commissioner Jeff Hatch-Miller said there is nothing wrong with using groundwater for the course. Both said Rhodes and his staff had proved a sufficient water supply and that he is legally entitled to use the resource to build an upscale development unrivaled in the area.

Issuance of the Certificate of Convenience and Necessity (CC&N), along with favorable determination of adequate water supply from the Arizona Department of Water Resources (ADWR), gives the developer the green light to begin construction of a water system for the development (which also requires permits from the Arizona Department of Environmental Quality (ADEQ) to actually begin serving water to residents).

This development has been very contentious because the area where it is being built has no access to renewable water supplies and groundwater is pretty deep in many areas. A new development with 25,000 homes is undoubtedly going to result in water level declines throughout the area, which will disproportionately affect individual homeowners on private wells who may lack resources to deepen their wells. Unfortunately, under Arizona water law, those people have no legal recourse to fight this once the development is approved and they start pumping - their only option is to try to stop the development in the first place, which many of them did. It's just awfully hard to stop progress and that is how this development is viewed by many in Northwest Arizona.

This has also been an ongoing issue of contention on the Commission. Commissioner Mayes has been a strong proponent of water conservation and preventing the use of high-quality drinking water supplies to irrigate turf. Other members of the commission have supported this stance, but not as staunchly as Mayes. Next year, a couple of new commissioners will be taking over for Mike Gleason and Jeff Hatch-Miller (as well as Bill Mundell). Two of the new commissioners are democrats, who will likely support Kris Mayes in her efforts to conserve water in rural Arizona.

In some respects this is just another way that Las Vegas is dealing with their chronic water shortages. There isn't enough water to build houses for these people in Nevada, but the Vegas area wants to keep growing. [Check out this NY Times article from this past Aug.]Why not put people in houses in Arizona, use the water there, then have them commute to Vegas and Henderson to work and contribute to their economy. And to sweeten the pot even more, this development gets subsidized by all U.S. taxpayers because what really makes it feasible is the new bypass and bridge being built by the feds near Hoover Dam. Pretty clever, huh?

Monday, December 8, 2008

Using Water Policy to Manage Growth - Nevada edition

From the November issue of Water Strategist (sub. req'd, but free 2 issue trial available):

Washoe County, Nevada voters convincingly approved an initiative measure that ties regional planning and growth to available water resources...
The measure requires the amendment of the Truckee Meadows Regional Plan (“TMRP”) to require future land use and water requirements in the county are in balance.
The practical impact is to have regional planners plan for 200,000 more people in the county for a total of 600,000 persons based on current water use and available water.

In theory, the measure requires county planners to create a plan for full build-out of the county. What's interesting about the measure that was approved is that the ballot initiative was only one sentence long:
"Shall the Truckee Meadows Regional Plan be amended to reflect and to include a policy or policies requiring that local government land use plans be based upon and in balance with identified and sustainable water resources available within Washoe County?

Stating it in such simple terms will create extensive work for lawyers and planning administrators in that area, working out how it should be implemented. I suspect it was stated simply in order to garner support. It could be interpreted to require something pretty similar to what is required in Arizona under the "Growing Smarter Plus Act", requiring counties and municipalities of a certain size to include a water resources element in their general plan. This is required to consider how much water is available and how much growth it can support under given conditions, but also includes a provision for demonstrating how additional sources of water may be obtained if projected growth will outstrip existing supplies.

The Washoe County initiative makes no reference to supply augmentation, merely referring to "identified and sustainable water resources" available in the county. That could be interpreted to place a pretty firm cap on future growth under one possible interpretation. Look for lots of litigation to spring from this measure in the future.

Addendum (1/19/09):
After doing some additional reading it seems that local law in Washoe County requires dedication of water supplies to the county before a new development can receive water service (this was noted in the WS article). This ensures that water supplies are available to serve new development - but says little about sustainable water supplies, that is determined by the State Engineer. However, I'm not sure what this means for developments that will be self-supplied for water service. In that case the developer would still need to find available water - either by application to appropriate available water or by purchase of existing rights. If anyone reading this knows what laws/regulations apply to developments in Nevada, or Washoe County that will be self-supplied for water I would love to hear from you.

Arizona Supreme Court to Address Significant Water Law Issue

Earlier this year the Arizona Court of Appeals rendered a decision on a case that purports to consider the issue of whether water rights can be reserved in a sale of property, permitting the seller to retain the rights to market groundwater from the property in the future. Shaun McKinnon, of the Arizona Republic, is reporting on his blog that the Arizona Supreme Court has agreed to consider a renewed appeal on the matter in the coming year. His characterization of the case (and the Court of Appeal's from what I can tell) gives the impression that actual "water rights" to groundwater are associated with the property. I'm afraid I have to take exception to that characterization.

Because the property at issue in the case (in the Big Chino valley, north of Prescott) is not within an active management area (AMA), under Arizona law the right to pump groundwater from beneath the property is held by the overlying landowner, subject to the reasonable use doctrine. This means that the only "rights" to groundwater associated with the property, are the rights of the landowner to pump water for reasonable use on the property. In that sense the plaintiffs in the case are correct - the seller could not really reserve groundwater rights as part of the sale. But the sellers did not reserve rights to groundwater here. They reserved the right to earn the proceeds from the sale of groundwater pumped on the property. If I remember my first year property class, this could be construed as a profit a prendre (old French for right of taking; typically called a "profit" for short). A profit is a nonpossessory interest in land, permitting the holder of the profit to remove natural resources from the land of another. In this case it would be a profit in gross, which is held separate from ownership of land and is transferable.

For some reason the court never even mentions the possibility that this could be a "profit", instead referring to what the defendant's owned as actual water rights. It would be interesting to check into the law in Texas, a rule of capture state, to see if they permit any reservation of rights to groundwater separate from ownership of land. It has always been my stated contention that the reasonable use doctrine, followed in Arizona outside of AMAs, is essentially the same as the rule of capture, but with modest limitations on transportation of water from the parcel it was extracted from.

Personally, I think the court got the ruling correct. In fact, I think it would be a good thing if actual property rights in groundwater existed in Arizona, but that would require overturning existing precedent. I suspect that the AZ Supreme Court will affirm the court of appeals ruling, but they might be persuaded by a public policy argument (that appeared to be unconvincing to the appeals court) because this could lead to speculation in groundwater rights. On the other hand, possibly not, because of the statutory restrictions on transporting groundwater from outside an AMA into an AMA. This would appear to limit the opportunities to speculate in this manner.

Thursday, December 4, 2008

and still more on using water policy to manage growth

The City Manager of Tucson took some steps during the past year that he insists do not amount to using water policy to manage growth, but it sure looks like a step in that direction.

So here’s how it went down:
In December 2007 the city manager stated that the previous city policy to extend Tucson Water service to any development - outside the present Tucson Water service area, but sufficiently close to existing infrastructure to be hooked up – that requested it would be replaced by a new policy whereby service would be denied unless the development was within the existing committed service area of Tucson water. Incidentally, he dropped this change on a newly seated city council with very little, if any, prior warning. The new policy has since been implemented at the expense of 4 proposed developments – two residential and two commercial – as reported late last month in the Arizona Daily Star (here). A few days later an interview with Hein was published in the Star (here) in which he defended the policy, placing the impetus for it, in large measure, on the dispute over who owns reclaimed water coming from the Marana treatment plant. This makes sense not just because the city should have a formal policy in place to decide where water service should be extended to (with the effect of guiding future growth to some extent) but also for other reasons, such as the simple fact that the city does not want to provide water to new development that will not be contributing to the city’s reclaimed water portfolio by sending their wastewater to a Pima County treatment facility. This is where the city manager’s mention of Marana becomes really significant. While the city is rightly concerned about losing the rights to effluent created by water they are supplying they are also reluctant to lose effluent to other jurisdictions that are not contributing to the water rights settlement obligations of the city (this is a very complex agreement between the City, the Tohono O'odham Nation, and the federal government that requires the city to compensate the tribe for stealing their groundwater for many years by placing wells next to the tribes boundary). Nonetheless, I would look for a requirement that the development be hooked into the Pima County sewer system to be a requirement for obtaining Tucson Water service in the future.

Hein says he wants to wait until the joint City/County Water Infrastructure, Supply and Planning (WISP) study is completed later next year before reevaluating the policy. He further claims in the interview that he is not making new policy on water service, he is merely undoing what had been the de facto existing policy – provide water to pretty much anyone who asked for it. One of the objectives of the committee studying water and wastewater infrastructure is to develop some sort of community consensus about how future growth in our community should be planned and implemented – which includes setting some policy for expansion of Tucson Water service beyond the existing committed area. Chris Avery (a city attorney currently assigned to Tucson Water) wrote an opinion outlining the city's obligations to provide water to areas outside the current obligated service area, which can be found here. He pretty much says that unless the area is completely surrounded by the Tucson Water service area or city land, there is no obligation.
This also provides legal cover for the county because local governments are permitted to impose moratoria on development under certain circumstances for a limited amount of time under state law. This isn’t truly a moratorium on development, but could be construed as such if a developer wanted to take the city to court. Given the current outlook for growth in this area during the next year or so that shouldn’t be a problem because there are very few developers looking to get their projects approved at the moment. Nonetheless, the developers of at least one of the projects that was denied water service has given notice to the city that they may pursue a suit, apparently based on the idea that as an infill development adjacent to existing Tucson Water service area, the city is obligated to provide water service. The developers of the two industrial parcels say the city’s new policy amounts to reneging on previous promises to provide water to the properties.
So what happens if the city stands on the denial of service? Will the developments go forward anyway? They certainly can and that is where the city policy could have adverse consequences for the region. The development is required, under state law, to have a proven 100 year water supply. The easiest way to do that is to sign on with an existing water supplier that has the proven supply already. But the developer could also create their own water company, drill wells, and supply the development with groundwater. This would require enrolling the development in the Central Arizona Groundwater Replenishment District, which would assume the obligation of offsetting the pumping with the development by obtaining and recharging renewable supplies – but the recharge would likely not mitigate the actual pumping occurring for the development, therefore localized groundwater depletion would occur.

Look for this to be a contentious issue for the city council during the coming year. Signing on with Tucson Water used to be a fairly simple and straightforward way for new developments to meet the assured water supply requirements of state law. Obviously at some point the city has to start saying no, but before they start doing that wholesale there has to be some greater level of coordination among jurisdictions in the area as to how growth is going to be accommodated. This means no easy answers will be available.

update on City/County water study

If any readers are wondering why no posts on this topic for a while, it's because the information gathering portion of Phase I is complete and the committee is focused on drafting the report. This involves a series of all day meetings occurring once a month. There was one in Nov. and the next is scheduled for Sat. Dec. 13, from 9 am to 3 pm, at the Tucson Assn. of Realtors, 2445 N. Tucson Blvd. I spoke with a committee member earlier this week who told me they would be discussing the definition of sustainability to be incorporated into their report at the Dec. meeting.

Coming up (when I find the time) I'll be posting on the recent decision by the Tucson City Manager to deny water service to several new developments around the city (late to the game on that one, I know) and the recently completed Town Hall meeting on future regional land use planning.