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PHOENIX — Arizona’s management of the San Pedro River went on trial here Monday.
But while attorneys in favor of and against a 6,900-unit development in Sierra Vista clashed on numerous legal points, center stage went to the Superior Court judge hearing the case. Judge Crane McClennen of Maricopa County grilled attorneys for the State Department of Water Resources and the Pueblo del Sol Water Co., particularly over a 2012 state finding that the planned development has a legally adequate supply for the next 100 years.
The judge is hearing a suit filed by the U.S. Bureau of Land Management and environmentalists Robin Silver and Tricia Gerrodette challenging the water agency’s decision that, if upheld, would give the development its most crucial legal clearance.
The judge pushed the company and the state’s attorneys over what would happen if the development were allowed to proceed, but after 20 years, a separate court proceeding ruled that the river’s rights to water took precedence. The judge once raised the question of whether water would have to be hauled in from as far away as the Verde River, the future of which is the source of legal disputes. McClennen also prodded the water company’s attorney to discuss how long the separate water rights case has dragged on — since the late 1970s.
At stake in this potentially landmark case is the future of the Tribute development, slated for a location four to six miles west of the San Pedro. Environmentalists see the project as a stake in the heart of the river and are concerned that the pumping will dry the river up just as pumping has sapped much of the Santa Cruz River near Tucson. Homebuilders and local officials worry that an unfavorable ruling could jeopardize Sierra Vista’s future growth and threaten the state’s system for determining if there’s enough water for new development.
At Monday’s hearing, the two sides clashed over whether:Tribute’s water rights should take a back seat to federal water rights attached to the river. Back in 1988, Congress said the San Pedro Riparian National Conservation Area had reserved water rights when it created the conservation area.Authorities must wait until it’s determined the extent of water rights the river has before they can know the limit on nearby groundwater pumping. The river’s rights to keep water won’t be fully spelled out until state courts finish a separate proceeding to decide on tens of thousands of claims to water in the entire Gila River Basin.The state has legal authority to consider pumping’s impacts on the river. The water department has said it lacks such authority; opponents disagree.It’s been proved that the development’s pumping will damage the river. Attorneys for the state and the water company argued that opponents hadn’t made such a finding. Environmentalist attorneys said they’d spent a week making that case during earlier, administrative proceedings.
At one point, the judge told Lee Leininger, attorney for the BLM, that his adversaries have made the point that until the river’s total water rights are fully known, “there’s nothing we can do” about the impacts of Tribute on the river’s water supply.
“We think that’s wrong,” Leininger replied. “What that amounts to is ignoring a legal interest that both the Supreme Court and the state say is deserving of protection. The Department of Water Resources needs to examine the legal availability of water for the water company. ... They need to see if extracting 5,000 acre-feet of groundwater, four to six miles from the river, will have an effect.”
Later, Pueblo del Sol attorney William Sullivan noted that when a state administrative law judge heard the case last year, he ruled that opponents of Tribute’s case need to show that the BLM’s and the San Pedro’s water rights are superior to the water company’s existing rights. Only the separate proceedings over water rights in the entire Gila Basin can determine the extent of BLM’s rights, Sullivan said.
“That’s key,” Sullivan told the judge.
Then the judge walked Sullivan through the very tangled history of the Gila River case.
“When did the Gila River adjudication start?” asked the judge.
Saying “it has a very interesting history,” Sullivan said the initial claim was filed by the Salt River Valley Water Users Association in 1978. In the next 30 years, there were “a lot of stops and starts” in the case as the court’s jurisdiction was contested and the rights of Indian tribes and the U.S. government to participate were resolved and approved, he added.
The judge asked Sullivan, “What’s your best guess as to how long it will be before a decision?” The attorney replied that that case’s judge could rule on the San Pedro’s water rights claims by 2015, and then the case would go to the state Court of Appeals, and possibly the Supreme Court. A decision is possible by 2020, Sullivan said, adding that that’s an irrelevant issue legally for this case. Sullivan noted that the State Department’s rules on legal availability of water have been the same since 1995, and that environmentalists made no objections back in the middle 2000s, when the state Department of Water Resources held hearings on whether to change those rules.
But what happens if, in 20 years, the Gila River proceeding determines that the river’s water rights are such that Pueblo del Sol won’t have enough water for 7,000 homes, the judge asked Janet Ronald, the state water department attorney.
Ronald, noting that the department can modify or revoke a determination that a development has an adequate water supply, said that if a court were to rule that the project is hurting the river, the water company’s wells could be shut down. The homes won’t all be built at once, she added, saying: “That’s why our order designating an adequate supply goes through 2032, the projected time for building these homes. That time may be extended if there would be a modification of our order.”
“Your position is that ADWR, all they have to look at is what is available right now, if that’s enough, for right now,” the judge observed. “If down the road the water runs out, that’s solved because Pueblo del Sol can truck in water from somewhere else or drill wells from another location.”
Sullivan said some of the development’s pumping could be restricted, saying, “Could we solve the problem by moving wells somewhere else, five miles further away? ... Yes, or acquiring bottled water. That’s a burden that Pueblo del Sol assumes.”
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