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Arizona ruling sides with developer in San Pedro River water use dispute; Legislature must solve the issues, says Rose Law Group land-use, regulatory and water attorney, Thomas Galvin

Posted by   /  August 10, 2018  /  No Comments

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In this 2015 file photo, the middle San Pedro River reflects the lush vegetation of cottonwoods and willow trees not far from Cascabel, north of Benson. /Mike Christy / Arizona Daily Star

 

By Howard Fischer | Capitol Media Services via Arizona Daily Star

The Arizona Supreme Court has given the go-ahead to new development in and around Sierra Vista even if it could dry up the San Pedro River — and even if it turns out that the homebuyers later end up with nothing but sand coming out of their faucets.

In a ruling with statewide implications, particularly for rural areas, four of the seven justices concluded Thursday that the Department of Water Resources is required only to consider whether developer Castle & Cooke Inc. and the Pueblo del Sol water company it owns have a 100-year supply of water beneath its land where it plans to construct up to 7,000 homes on 2,000 acres, the legal right to the water, and the financial ability to supply it.

More to the point, the majority said the state agency need not consider other potential future claims for the same underground water — in this case, by the federal Bureau of Land Management — or even the possibility that those other claims could end up leaving the development and the people who buy homes there high and, literally, dry.

“Whether the adequate water supply designation process should go further in protecting consumers is a matter for the Legislature,” wrote Justice John Lopez for himself and three colleagues. And he said that the way water laws are crafted “demonstrates the Legislature’s intent to provide only limited protection to consumers and simultaneously encourage development.”

Thursday’s ruling is unlikely to be the last word in whether Castle & Cooke, a private company owned by David Murdock, can construct its Tribute development about five miles from the river and whether his Pueblo del Sol can pump an extra 3,400 acre-feet of water a year — about 1.1 billion gallons — out of the ground for the project.

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“The Supreme Court wrestled with the meaning and definition of ‘legal availability’ under Arizona Department of Water Resources’s [ADWR’s] regulations. The majority held that if the legislature intended for ADWR to account for federal reserved water rights when performing its legal availability analysis, it failed to do so. Therefore, it’s up to the legislature, instead of the court, to mandate a requirement. The dissenting justices were concerned about the lack of ‘consumer protection’ for those who might buy homes but find themselves without water. For instance, determining legal availability should account for any and all competing claims. However, it appears it may now be up to the legislature to resolve this, once and for all.”

~ Thomas Galvin

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