Friday, March 15, 2013

Follow-up on Tribute development in Sierra Vista

The Daily Star has an article this morning about the big proposed development in Sierra Vista that has been the subject of some controversy lately over their water use.  I commented on this situation last summer when Arizona Department of Water Resources first ruled that the development does have an adequate water supply and could move forward in the permitting process.  This latest article was prompted by a ruling from an administrative law judge who determined that the Department had correctly applied Arizona law in making their decision.

Image courtesy of usbackroads,

 The article correctly states that under Arizona law the opponents of this development have no basis for challenging the approval of the water supply, hence the ruling from Judge Shedden.  Where they might get some traction is in federal court.  But there are no guarantees that a federal court will act in time to prevent the development or that it will even take action to stop the development if it does.  The opponents clearly have an uphill battle here.  If this does go to federal court I would expect to see our state legislature trying to pass many stupid laws and resolutions condemning the potential trampling of state sovereignty by the federal government.  That's just how we roll in Arizona.

Friday, March 8, 2013

Quality Scholarship on the Issue of Property Rights in Groundwater

This article was posted on the Environmental Law Prof blog recently.  I'll bite on anything that discusses the nature of property rights in groundwater and this article is a very good one.  The author is a former scientist (geologist) turned lawyer (now law professor), so we have something in common.  It's a very thorough discussion of how groundwater rights are treated in the context of takings jurisprudence, using last year's decision (pdf) from the Texas Supreme court in the case of Day v. Edwards Aquifer Authority as the jumping off point. At the time the ruling came down there were many (myself included) who felt it was a blow to prospects for sensible groundwater regulation in Texas.  Finding that landowners have a constitutionally protected right (potential) to groundwater in situ is a strange concept in nearly every state in the U.S. except Texas.  But Prof. Owen believes that this is not a death knell for future regulation of groundwater use.  He believes that property rights in groundwater and sensible regulation of those rights can co-exist.  I hope he is right.

Some overdue follow-up

I've neglected to follow through on my promise to provide an update to the Arizona Dept. of Water Resources (ADWR) Non-Indian Agricultural (NIA) water re-allocation process, that I have previously discussed here and here.  Sure I waited until almost the last minute but I am keeping my promise.  ADWR did release their final process (pdf) for carrying out the water allocation last month, as they promised and they are having a meeting next week (3/12) to go over the rules with potential applicants.  I won't be at the meeting because I don't represent any potential applicants - Indian tribes are specifically excluded from receiving an allocation of this water - but I hope to keep track of how this program progresses.  The final process is not dramatically different from what they originally proposed.  Without having parsed the final document closely the only real difference I can come up with is that they shifted some of the water to the second phase of allocation.  Apparently there was some concern that the full amount they proposed to give away next year might not actually be contracted for under the set of qualifications they proposed.  Maybe there will be some movement toward market allocation of water by the time the second phase starts up in 2021.  Maybe.

The other item at ADWR I have been following is their proposal to modify certain aspects of the recharge program, which I previously discussed here.  This proposal was floated by the department as a possible idea to include in the upcoming 4th Management Plans (4MP) for the Active Management Areas (AMAs).  There has been pretty widespread acknowledgment for more than a decade that certain aspects of the regulatory regime that governs use of groundwater in the AMAs probably still permits too much groundwater pumping in certain areas to protect the overall health of the state's aquifers.  ADWR thought they might try to address this by making some changes to the recharge program that would encourage water users to do their recharging and recovery of that recharged water in closer proximity.  My point has been that the problem is not the proximity (or lack thereof) of recharging and recovery activities.  The problem is that the rules simply allow too much pumping, sometimes in places where we might like to see a lot less pumping.  I think something along these lines will show up in the 4MP, but it will just be a recommendation to study the issue further.  This will result in a stakeholder process to look at possible solutions.  I actually thought the current Safe Yield Task Force was supposed to be looking at this issue but maybe too many people involved are aware that the real solution is not a path they want to go down.  We'll see.