When deciding if a development should be blocked, Arizona water regulators lack the power to consider whether groundwater pumping for the project could lower the neighboring San Pedro River.
That's the new ruling by an administrative law judge, who upheld a decision by the Arizona Department of Water Resources that a proposed 7,000-home project in Sierra Vista has enough water for 100 years as required. That determination of adequate water supply is needed for new Cochise County developments.
Opponents of what's known as the Tribute housing project failed to prove that the agency should have considered the pumping's effects on the river, Administrative Law Judge Thomas Shedden ruled this week.
Norm Fain, a Phoenix water consultant representing Pueblo del Sol, the water company for the Tribute development, said the ruling was appropriate because analyses showed the utility has enough water for 100 years without damaging other groundwater uses.
While opponents cited studies showing the pumping affects the river, Pueblo del Sol's consultants questioned them at the hearing on this case.
"Arizona statute does not address how groundwater affects surface water," said Fain, owner of a company named Fluid Solutions. "Arizona has two sets of laws - one for groundwater and one for surface water."
A Tucson-based independent water consultant familiar with the San Pedro, Laurel Lacher, said the ruling shows that Arizona law is inadequate to provide long-term protection for surface water resources.
"The state law draws a bright line between groundwater and surface water resources," said Lacher. "There's no way (the law judge) could have decided any other thing with the results they had."
Arizona Department of Water Resources Director Sandra Fabritz-Whitney said Thursday that she couldn't comment on the decision because she hadn't read it yet.
The Bureau of Land Management and two environmentalists who have been active in the fight to save the river had appealed the earlier ruling to the law judge. Ultimately, this case could land in federal court, pitting BLM's federal water rights on the river against the developer's state water rights.
BLM officials weren't immediately available for comment.
Robin Silver, an environmentalist and landowner in the river area who had filed an appeal, said "the ruling reflects no respect for the hydrological fact that groundwater and surface water are connected."
Pueblo del Sol says it has 4,870 acre feet of water "physically, continuously and legally available" for 100 years. BLM warned that such water use - three times more than Pueblo del Sol uses now - could hurt its water rights.
During the hearings, a hydrologist for Pueblo del Sol, Robert Cain, testified that recharge of treated sewage effluent from a Sierra Vista-run sewage plant near the river would offset the effects of Tribute's and other projects' pumping on the river.
James Leenhouts, a U.S. Geological Survey scientist representing BLM, and Silver, used maps to show that a well underneath Pueblo del Sol would capture 30 percent of the groundwater that otherwise would flow to the San Pedro.
"The ruling reflects no respect for the hydrological fact that groundwater and surface water are connected."
Robin Silver,
environmentalist and landowner in the San Pedro River area
Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.
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