Some quick updates

As expected, an environmental organization has filed suit against the state over the approval of a large development in the Sierra Vista area (I discussed this in a previous post in March).  Earthjustice issued a press release yesterday (it also includes a link to their complaint) announcing their suit filed in Maricopa County Superior Court.  I've only skimmed the complaint and it looks pretty straightforward.  I look forward to the response from the state.

I was also alerted recently to a report recently issued by the Columbia University Water Center and Veolia Water titled "America's Water Risk: Water Stress and Climate Variability".  It looks at relative risk of water scarcity in each county in the U.S.  They employ a statistical methodology that looks at past climate data to assess the likelihood of a severe drought that could exhaust available water storage in each area.  As you might expect they find significant risk in places where long-term storage is not part of the supply - mostly in the east - and places that are highly reliant on vulnerable sources from considerable distance - i.e. Southern California.  I was happy to see that Arizona is not among the places at greatest risk.  That's cause we live with scarcity all the time and plan for it.

There was also some water management related excitement here in Tucson this week as the city council looked at setting criteria (pdf) for allowing 3rd parties to hook into a pipeline that carries CAP water to a recharge facility south of the city.  This relates to a couple of proposals by entities in the Green Valley/Sahuarita-area, which is upstream along the Santa Cruz river, who would like to take delivery of existing allocations of Colorado River water via the CAP system to be put in the ground as mitigation for their large-scale pumping of groundwater over many years.  One of the potential recipients of such an arrangement could be a company called Rosemont Copper, who wants to construct a large copper mine in the mountains south of Tucson.  Many in the city are opposed to the mine and think that if they deny Rosemont the ability to offset their groundwater pumping with recharge of CAP water they will be less likely to get their permits approved.  It's a long shot, but getting the Forest Service to deny a permit for a hard-rock mine on federal land is always a long shot.  I'll have a longer post on this issue probably next week, because there is a lot of nuance to it.

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,blogspot.com

 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.

Latest Installment in the Painted Hills Follies

Let's see if we can figure out what's wrong with this article.  In paragraph 4 it says:

The county approved development plans for the 284 acres of scenic Painted Hills property just west of the city limits, but the supervisors didn't want the site developed, so they asked the city to deny water service to the property.

So the county asks the city to save them from a bad decision - see the county voters approved bond funds that would enable the county to buy this parcel of land and preserve it as open space.  But when the owners wouldn't sell to the county, the county decided they could wait them out.  But somebody else came in and offered more money for the parcel, expecting to develop it.

The city instituted a new policy that was used to deny water for the development, but ran into other problems when the developer sought a different remedy.  They are currently in negotiations with the property owner to do a swap that will provide them with a develop-able parcel of land elsewhere and permit preservation of the Painted Hills parcel.  You can find info on the city's water policy referenced here and here.

But back to the current article.  At the end of the article are a couple of really nice comments from the County Administrator, Chuck Huckleberry:

Huckelberry wants the board to ask the city to change its water service policy to provide service to properties like Marrs'.
"The presently adopted Tucson Water policy does not support rational regional planning for water service," Huckelberry said in the memo.

Guess it really pays to stay on the good side of our county administrator.  If I can paraphrase something a former president said recently - it takes some real brass to encourage the city to use their new policy to prevent development in one location then come back and say that said policy prevents rational regional planning when it stands in the way of a particular development you do want to see go forward.  Is it any wonder people in this town have so little respect for our local governments?

Is ADWR Impotent or Just Arizona Water Law?

From today's AZ Daily Star, a piece by Tony Davis about Arizona Department of Water Resources (ADWR) recent decision to approve the water supply for a very large new development in the Sierra Vista area.  For a little background on water issues in this part of Southeast Arizona check out my previous posts here and here.

Before I take a look at what this decision means I have to point out one erroneous statement from the article.  In the 3rd paragraph where it says "the department's decision gave a clear signal that it doesn't agree with the BLM's position opposing this pumping ..." that is not exactly a correct interpretation of what ADWR was saying (just based on what was reported here because ADWR doesn't have the decision posted to their website as of this afternoon, when I last checked).  As stated under the reasons cited for the ruling, ADWR simply doesn't have the authority to consider the effect of federal reserved rights on an application for a designation of adequate water supply where the application involves pumping groundwater and the federal reserved rights at issue are for surface water.  Arizona law doesn't recognize the connection between surface water and groundwater, except under very narrow circumstances.  And the criteria that ADWR can consider in evaluating the application are pretty clearly spelled out in the administrative code.  I've never noticed anything in there about compliance with federal law as it pertains to federal reserved water rights.

Our failed development model

I found an interesting series (links to part 1 of 5) about the failure of the suburban planning model in a journal (Aug. 2011 issue) of the American Planning Association and thought it was worth sharing.  I traced the article back to a series of blog posts by the author on the website of the New Urban Network - one of those New Urbanism advocacy groups that have sprouted up over the last two decades.

This isn't really about water - but water resource planning plays a huge role in it, especially in arid areas like the southwest.  But I found this series very interesting because it does a really good job of articulating some things I have been trying to say, somewhat inarticulately, for a long time.  I think the Ponzi scheme language is maybe a bit strong - maybe because that term has been so degraded through use by a certain presidential candidate, but the overall point of the series is pretty much dead on.  The way we have grown - especially in the Sunbelt, but all over the U.S., since WWII has resulted in financial obligations taken on by most local jurisdictions that are proving to be unsustainable.  Especially since the financial meltdown.  I call it the junkie model of growth - a city gets a taste of something it likes, in this case subsidized growth that increases local tax bases, and before you know it they can't seem to get enough of it and if they stop getting it they're headed for a nasty crash.

I highly recommend checking it out if you find this sort of thing interesting like I do.

Hit the high points

There are a number of initiatives currently on-going around Tucson.  I've got my hand in two of them, have dabbled in another, and may become involved in a fourth.

1)  Way back in 2007, the city changed directions in its role as a regional water provider when the then city manager decided the city needed to have some sort of coherent policy to guide decisions to expand the service area of our water utility.  This policy change (it actually was the creation of a policy that didn't previously exist, in my opinion, because prior to that the city would provide water to anyone who asked for it and agreed to pay for the infrastructure needed to make the connection) was a huge step around here and I'm still a little surprised that it has remained in effect.  I have several other previous posts on this topic: i.e. here, here, and here.
This was just an interim policy.  The city wanted to wait for completion of the City/County Water study before implementing a final policy - which happened in mid-2010.  One of the requirements with that adoption was that the policy would be reviewed annually.  That annual review process has been underway for the last 4-5 months, coming before my subcommittee of the Citizen's Water Advisory Committee on several occasions.  After receiving feedback from the development community, the city council requested that Tucson Water staff set up a formal stakeholder process to request feedback from other sectors of the community.  That has resulted in two public meetings occurring the 2nd half of October to provide people with background on the policy and give them an opportunity to comment and suggest modifications.  After the public meetings are complete I'll post something on the likely changes to the policy - which should be fairly modest.  One change has already been made, when Mayor and Council approved changing the time that water assurance letters are valid from one year to two.  This gives a developer more time to finalize development plans and get their development underway with iron-clad assurance that they will be provided water once built-out.

2) The Safe Yield Task Force, which I wrote about briefly here, has continued chugging along.  We have revisited the main issues/recommendations that came from a similar effort a little over a decade ago (the AMAs produce a new planning document every 10 years and they usually lead to a certain amount of soul-searching within the region).  This group has been meeting almost monthly for about a year and has probably accomplished most of what it is likely to accomplish - but it hasn't accomplished what some in the group had hoped it would accomplish - deal with sub-area management issues.  That is because most of the issues addressed require regional solutions to regional problems, but sub-area management requires figuring out who is causing more localized problems and getting them to fix their own mess - unless you can get everyone to agree that we will deal with the mess as a region.  But the good outcome has been (I think) a commitment to measure and monitor what is happening in the region to get to full utilization of our renewable water supplies - which is a pretty big step.

3) The city is currently in the first part of the process to update the General Plan that is used to guide zoning and growth decisions for the next 10 years.  One of the working groups assigned the task of establishing goals to be accomplished via enumerated policies is discussing the role of water in growth decisions.  That group has a working document that was developed at the last meeting (probably the extent of my involvement) and will be further refined at their next meeting, Tuesday 10/18.

4)  When the City/County Water Study wrapped up, the intent was for the discussion to move to the regional level - incorporating all jurisdictions and major water users in the Tucson AMA.  The mantle was taken up by a group of 5 individuals representing some of the major water interests around here, calling themselves the Regional Water Assessment Taskforce.  This self-appointed group developed a pretty clever way to assess the motivation and possible methods of implementing some sort of regional effort to develop more sustainable water use practices.  Last year they convened a number of local individuals with expertise and/or influence in the use and management of water resources in a series of discussions they called "think tanks".  Which were kind of like focused internet chat rooms where everyone was talking about local water policy, guided by a set of common questions.  You can find out more about the process by reading the report on the website linked above.
After completing these discussions they compiled all the comments made into a report that tried to distill them into distinct areas of common interest.  This report was recently unveiled to the public at a well-attended meeting.  They are hoping to elicit feedback on the report and a series of recommendations they made to continue the discussion within a set of 4 regional water strategy groups - water supply, infrastructure, conservation/demand management, and reliability, sustainability and aquifer health.
It will be interesting to see if the region can sustain any momentum with this effort in the face of anemic economic growth and struggling government budgets.

City council decides not to decide

This is a follow-up to my previous post.

The city council first voted unanimously to reconsider their previous vote in favor of annexation (as was expected).  Then they heard from a few people in the audience and voted to go into executive session so they could discuss the options with the city attorney.  When they came out, they simply voted to give the city attorney 30 days to find an alternative solution to resolving the lawsuit - i.e. find some other land for the pension fund to develop, or more specifically, ask the county to find some other land they could trade with the developer or just buy this parcel outright.  OK.

Seems to me that if that option was on the table in the first place the county wouldn't be asking the city to refuse annexation and water service to the developer.  And that's pretty much what the county administrator says in the article.  So 30 days from now we'll have another round of political theater, except this time the final act will be the council seeking forgiveness because their backs were really against the wall on this one and the only thing they could do was to cut a deal with the developer.  But hey - they tried right?

Seeing red over Painted Hills - aka another edition of Using Water Policy to Manage Growth

There's a big, ongoing fight coming to a head this month in Tucson.  On one side you have the county administrator, environmentalists, and a powerful and well organized neighborhood association.  On the other side you have a property development company that represents the interests of the Dallas Police and Fire Pension Fund.  And in the middle, for the moment, is the Tucson City Council.

The fight is over the right to develop a parcel of land just west of downtown Tucson, but outside the city limits, known as Painted Hills.  This parcel is just under 300 acres of prime Sonoran desert landscape, just 10 minutes from downtown.  Most of the land surrounding the parcel is developed (to the extent allowed by the terrain), but there is also a large county park in the general vicinity.  The site is supposedly home to over 1000 10,000 mature saguaros - the acknowledged symbol of the Sonoran desert - as well as prime habitat for many birds, small mammals, and probably quite a few coyotes.  It's a pretty location and something of a rarity so close to a rapidly growing Sunbelt community.

more below

Water Conservation in New Property Development

There was a recent article in the Wall Street Journal about the efforts of property developers along the Colorado Front Range to reduce the water impact of those properties.

I think it's fantastic that developers are embracing water conservation in a significant way, even if you consider that they really have no choice in many cases. For some areas it has become a matter of build smart or don't build at all. Or at least be happy with building something that will make a much smaller profit. But something that tends to get lost in the self-congratulatory language of these developers is that maybe the choice shouldn't be between a high-water-use development and a low-water-use development but between any development and no development.

If you're talking about a new development on untouched land I would much rather see it remain open space than see the most environmentally-conscious, low-water-use development in the world be built there. However, if you're talking about converting an existing use - farming or low-intensity development - to a new higher-intensity use, then by all means they should make every effort to limit the impact on local water supplies.

I realize it's not always so easy. When land is privately owned there are certain rights to develop land that can't just be taken away from the owner without just compensation. And often a larger-scale development offers greater opportunity to exact concessions from the developer, forcing a more limited impact on the environment than is the case when the land is divided into 36 acre ranchettes. But just because the developer is installing rainwater and gray water reuse features, and water conserving appliances doesn't make it something to be praised. After all the developer will most likely have no role in the development once built. The buyers might use just as much water as the development up the road. But for now the developer gets to be the good guy and in addition probably gets to charge a premium for homes in the development because of it's "green" features.

This stuff always warrants a closer look.

h/t to John Fleck for pointing me to the WSJ piece.

Follow-up on previous post, parts 3 and 4 from the Verde News on Prescott/Big Chino/Verde River controversy

The final two parts of this series came out during the past week - find them here and here. Actually, on that last one I'm guessing it's the fourth part - it's not exactly clear from reading the lead-in, but it came out just after part 3, by the same author, and has the same subject, so I'll call it part 4.

Part 3 talks about the history of the area some more, but the real focus is on what is occurring in the Big Chino watershed apart from the Big Chino Water Ranch project.

According to the State Land Department, there are approximately 318,000 acres of privately owned land in the Big Chino basin.
That number will grow when the Yavapai Ranch Land Exchange is completed.
In addition to private land, the State Land Department holds 233,000 acres in trust, which, by state statute, could be auctioned off and become private land in the future.
Virtually the entire basin, since it is rural Yavapai County, is zoned for one residence on every two acres. That, too, is subject to change as developers trade infrastructure, open space and other amenities for higher zoning densities.
And since the Yavapai County Board of Supervisors has yet to endorse a new state law that would allow them to deny a subdivision based on the lack of an adequate water supply, any and all developers have the right to sink a well, even if it eventually dries up.

What they are saying is that in addition to Prescott and Prescott Valley's plans to pump about 12,000 acre-feet of water from the basin, there could be thousands of small ranchettes out there with their own wells, pumping who-knows-how-much water from the aquifer. My guess is that will have some kind of impact on the Verde River eventually and because it will be the result of the actions of thousands of individual landowners, pinning the blame on the Water Ranch, while logistically tempting, will be difficult to do. Oh sure, they will be the only one's pumping from the aquifer and piping the water far away - their use will be essentially 100% consumptive - while the individual landowners will be pumping from their wells, using some of the water in their homes and yards, but eventually returning most of it to the watershed either through septic leachfields or sewer plant discharge. But if the private land in the valley were fully developed at some point in the future, the springs feeding the Upper Verde would dry up at some point.

So will all that land be developed? Pretty unlikely. Hopefully the majority of it will be taken off the market for development by purchase of development rights, conservation easements, or outright purchase of the land. The state land makes for a challenging issue because of the statutory requirement that the state obtain maximum value for that land (typically by selling it to a developer, who can then put the land to its "highest value" use by building homes, highest value strictly in terms of cold, hard cash). But there has been a strong push in the state in recent years to relax that requirement and hopefully the law will be changed by the time that land is considered ripe for development. But some of what you hear from the area is not real encouraging:

The new owners of the CV/CF Ranch, Chino Grande Ltd., have applied to the Arizona Department of Water Resources to pump 20,776 acre feet of groundwater from the aquifer -- twice Prescott's allotment.
They have also proposed selling 3,000 acre-feet a year of water rights from historically irrigated acres on the ranch, to the Town of Chino Valley. And they intend to build 25,000 homes on the land above.

The final article is a profile on two of the political players in this drama. John Munderloh is the water resource manager for the Town of Prescott Valley (one of the parties to the Water Ranch project) and Doug Von Gausig is the mayor of Clarkdale, a small community in the Verde Valley, downstream from Chino Valley. They both talk about sustainability in the article - Munderloh from the perspective of sustaining both water supplies and growth in the Prescott area and Von Gausig mostly from the perspective of sustaining the river.

Munderloh believes that all that is required to protect the river and permit his community to continue to grow is better management. Of course he still believes they need more water to support that growth. He takes the position that the estimates of natural recharge to the aquifer in Chino Valley are grossly understated because anytime water is flowing in the creek above the Verde headwaters, that means the aquifer is full and unable to take more recharge - a condition he claims is fairly common. It's a pretty simplistic view of hydrogeology that the proponents of pumping seem pretty fond of up there. They like to point to the fact that there has been pumping occurring in the valley for years to support irrigated farming and the river hasn't dried up yet. But they only have estimates of how much pumping has occurred (because no one measures those things in rural parts of Arizona) and the timing of that pumping may be quite different than the timing of pumping from the proposed supply wells. There really is very little known about what the long-term effects will be.

Von Gausig just knows that a healthy river is essential to his town because it supports existing water rights in the area (which would not be protected from upstream groundwater diversions under Arizona law) and most importantly is probably a significant source of tourism dollars for the area. That's why he supports a regional governing body that manages the river and the aquifers, plans for future water supplies, and generally ensures that everyone is on the same page. I wonder if the Salt River Project will be represented on that regional body?

(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.

The realities of using water policy to manage growth - post-Prop 207

This is a topic that I have been looking at sporadically since I completed a research project on it for a class in law school. First some background - Prop. 207, the private property rights initiative passed by Arizona voters in 2006 limited the ability of local jurisdictions to implement new regulations that would restrict development of property. When the value of property is diminished by such regulation, the property owner has a right to be compensated for that decrease in value. The important catch (for my purposes here) is that the property owner must have vested rights to develop the property in a certain way before the regulation is implemented. In the past, most developers secured water supplies for their developments after getting approvals from zoning boards, county supervisors, etc. where a change to the comprehensive plan or existing zoning was necessary. That meant the development was pretty much a done deal by the time the developer put plans in place to secure water supplies. Therefore, the development was entitled to have the necessary water regardless of what that meant for other water users.

Recent changes to land use policies in many areas have created requirements that developers submit details on the proposed water use associated with a development prior to obtaining necessary land use approvals. This allows local government to either deny approval to development that would have a deleterious impact on water supplies, or (more likely) to impose certain requirements on the developer - i.e. conservation, water use limitations, water recycling requirements. This is the sort of policy that Pima County recently included in an amendment to their comprehensive plan. Not only does this policy give the county more of a say in the type of development that occurs, where it occurs, and how much water it will use. Perhaps more importantly, it places the water supply analysis before any land use approvals, which prevents the developer from obtaining vested development rights, thereby avoiding the risk of any takings claims (pursuant to Prop. 207) against the county.

This is a very significant development in the creation of sensible land use policies that provide necessary links to water use policies that had been lacking for far too many years. And in my opinion it's more than a little ironic that the policy was likely developed (at least partially) in response to a voter initiative intended to protect the rights of private property owners and limit the ability of governments to impose limits on the ability of property owners to develop their land as they wish. For that reason alone, Prop. 207 may have been a good thing.