Thursday, March 29, 2007

Water adequacy a murky bill (Prop. 207)

There is an old saying about legislation: "What the big print giveth, the fine print taketh away."
A perfect example of this is SB 1575 and HB 2693, currently on a fast track through the Legislature regarding subdivision water adequacy determinations by the Arizona Department of Water Resources.
The big print has been touting these as a local control issue. The bills purport to give a new power to local governments by allowing them to deny subdivision approval outside an Active Management Area for a proposed subdivision that has received an inadequate water determination by ADWR.
Current law, ARS 9-463.01, already clearly provides that cities and towns may deny subdivision approvals based on a lack of water. Net local power gained by this new proposal is zero.
Also under current law, local governments have the power to grant exemptions if an inadequate designation is made by ADWR because there may be other local mitigating factors. These exemptions require full disclosure to the buyers. Under these bills, exemptions can be granted by ADWR only. Local control lost, not gained.
These bills provide that local governments may adopt these provisions but (here's the fine print) once they "opt in" they can never rescind the provisions. So much for local control over local ordinances. This is clearly a net loss of local control.
Over 100 years of Arizona groundwater laws have been based on the concept of "beneficial use."
Anyone, at any point in time, has the right (assuming one meets other criteria regarding parcel size, etc.) to drill a well if the water will be put to a beneficial use.
Surface water laws are based on an entirely different concept called "first in time, first in right." This means a water right that is claimed prior to others has the first right to a full water allocation before any others may use their water right, even if the first claimant is downstream of subsequent claimants.
These bills would change the groundwater laws to conform with the surface water law concept.
ADWR could determine that the first subdivision applicant for groundwater would receive an adequate designation, the second subdivision applicant could receive an inadequate designation even though both were in the same area.
Two major issues arise with this monumental change in water policy.
Last year, the voters overwhelmingly supported Proposition 207 to protect private property rights. Prop. 207 provides that any new land use law enacted that decreases the value of a landowner's property requires compensation for that loss of value.
There is no question that a loss in value will be claimed by some landowners who are denied subdivision approval based on an inadequate water determination.
Prop 207 contains an exemption based on health and safety issues - however health and safety limitations are not defined. These issues will ultimately be resolved by the courts but the question is, who has the liability in the event the landowner is successful in winning a compensation claim for value lost?
ARS 45-108G states "the state of Arizona and the director of the department (ADWR) shall not be liable for any report, designation or evaluation prepared in good faith pursuant to this section."
In asking the question regarding potential liability, this is the response from ADWR attorneys: "Although the adequacy bill authorizes cities, towns and counties outside of AMAs to enact a mandatory inadequate water supply requirement, it does not require them to do so.
"If a city, town or county decides to enact a mandatory inadequate water supply requirement, the enactment of the requirement by the city, town or county would be the action that would potentially be subject to a Prop 207 lawsuit, not the state's action in passing the adequacy bill or ADWR's action in determining that the subdivision has an inadequate water supply."
Local control, in this case means only one thing: total local liability for potential claims.
The second, and perhaps the more important issue, is not even in the bills before the Legislature. These bills do not address the issue of lot splits or domestic exempt wells.
Even if a local government denies subdivision approval based on an inadequate water supply, the landowner, under current (and continuing) law, may still divide the land creating lot splits that will allow a well to be drilled on every subsequent parcel created.
The net result in that more groundwater will be used than would have been used by the subdivision.
The U.S. Geological Survey estimates that exempt wells pump approximately three times the amount of water used by municipal users. The subdivider could have potentially recharged up to 60 percent of the water through a wastewater treatment system. Recharge is something that can't be done in an area of exempt wells and individual septic systems.
If our ultimate goal is to use less groundwater, these bills fail miserably in that regard.
The bottom line is these bills are not even a step in the right direction toward a sustainable water supply for future generations.
We must, however, continue to look for practical answers to meet these difficult challenges.
To the public, local governments and legislators; Don't swallow the "local control" sound bite. These bills don't giveth local control, they taketh it away.
Carol Springer is a member of the Yavapai County Board of Supervisors, a former state senator and former state treasurer and co-chairman of the successful effort to enact Prop. 207.

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