Proposed law on water supply requirements watered down

PHOENIX -- The chief proponent for allowing counties to ease water supply requirements for new developments has agreed to back off -- somewhat.

Senate Majority Whip Gail Griffin, R-Hereford, had originally demanded that counties that have such mandates reapprove them within two years by a unanimous vote of the board of supervisors. That would have allowed a single supervisor to scuttle the requirements.

Facing opposition -- and potentially lacking votes -- Griffin agreed to flip the language.

The version of SB 1400 now awaiting final approval still requires the supervisors to review their plans. But it would require a unanimous vote of the board to kill the ordinance, meaning a single supervisor could rescue it.

And that review would not have to take place for five years.

Even with that change, Sierra Club lobbyist Sandy Bahr said her organization still opposes the legislation.

"It's marginally better,' she said. But Bahr said no development should be built anywhere in the state without an assured water supply. And she said there's no reason for counties that have such ordinances to review them.

"Are we really magically going to have more water?' she asked. "History tells us there is less and less.'

Griffin's decision to back down, however, still leaves one other potentially more far-reaching measure.

SB 1268 allows cities in counties that do have mandates for assured water supplies to opt out.

That legislation, which also awaits a final Senate vote, appears designed largely to help Castle & Cooke put in a 7,000 home development in Sierra Vista, a plan that has been stalled amid legal fights over that water supply.

SB 1400 is an outgrowth of the historic 1980 Groundwater Code. It requires certain areas of the state to achieve "safe yield,' where the amount of water pumped is no more than what is recharged.

There also are requirements for an "assured water supply' before new development can occur, meaning that there is at least enough water for those homes and business for 100 years.

A 2007 amendment allowed other area of the state to adopt similar requirements. To date, only Cochise and Yuma counties have taken advantage of that option.

That, however, is a one-way option: Once the mandate is in place it cannot be rescinded.

Castle & Cooke, in seeking approval to build its Tribune development, got the state Department of Water Resources to conclude there was the required 100-year water supply.

But the U.S. Bureau of Land Management contested that finding, saying some of the water the state was counting as available for the development actually belongs to it. In essence, the BLM claims the federally created riparian area along the San Pedro River entitles it to sufficient water to keep the river flowing.

A trial judge approved, bringing the development to a halt while the state appeals. A hearing is set for April 28.

Griffin's two bills are designed to make that court ruling legally irrelevant.

If SB 1268 is approved, Sierra Vista could simply exempt itself from the county ordinance and the requirement to show a 100-year supply.

SB 1400, as Griffin originally crafted it, provided an alternate approach. It said the entire county ordinance -- and the 100-year mandate -- would self-destruct in two years if the supervisors did not unanimously ratify its extension.

Griffin, in changing the law to require unanimous approval to rescind the requirements, acknowledged she was responding to critics of the measure.

It still requires the supervisors to reconsider the ordinance, not only five years after the law takes effect but every five years from then on.

"They're to take a look, review,' Griffin said. "And if they no longer wish to participate they'd have to have a unanimous vote to withdraw.'

Cochise County Supervisor Pat Call, whose district includes much of Sierra Vista, said adopting the ordinance nearly a decade ago "seemed innocuous at the time.'

What was not particularly discussed at the time, he said, was the fact that once the county adopted such a requirement it was impossible to rescind. SB 1400 provides that option.

"I don't see that as a bad thing,' he said.

But Call said his willingness to continue the county mandate will depend on the fate of SB 1268.

"I don't think cities should be subservient to county ordinances,' he said.

Call said if Sierra Vista has the option to opt out, he would be more inclined to vote against any move to rescind the county water-supply requirement. But if there is no local opt-out, Call said he would support repealing the ordinance.

That goes to the issue that, in some ways, SB 1400 is more significant than SB 1268. That's because the former deals with ordinances that affect not just developments within cities but also attempts to build homes in unincorporated areas of the county.

By contrast, Richard Searle, whose district runs from Fort Huachuca through Benson and the northern half of the county, does not want to allow cities to opt out and opposes SB 1268.

"To me, it's not a smart deal to be monkeying with the water law that was put in place,' he said.

"It was put in place for a reason,' Searle continued. "To allow the city to circumvent it at a later date doesn't make sense.'

Searle also said it was no secret when the county first adopted the requirement for a 100-year water supply.

"And there were no objections from Sierra Vista,' he said.

Searle said he didn't like the original version of SB 1400 either.

He said, though, the new version, which requires a unanimous vote to kill the county ordinance, is somewhat better. Still, Searle isn't convinced lawmakers should approve the change.

"I would almost think that they'd be better off leaving it alone and not even monkeying with it,' he said.

Call said he has one concern with keeping the county requirement: How it can be used by the BLM.

"I wish the federal government weren't basically trying to corrupt something that was intended to give counties some small authority to say to a subdivider, 'You can't build homes if you don't have the water for them,' ' Call said. "That's all we were looking for.'

This isn't the first time that Griffin has had to make changes to her water proposals to get the votes.

SB 1268, the city opt-out measure, was stuck in the House when she agreed to tack on some additional requirements to withdraw, at least for cities with 25,000 or more residents.

For example, it now reads a city would first have to show that it is participating in a program to augment the aquifer, had adopted a plan for the reuse of reclaimed water and has a water conservation programs.

Other mandates include having an ordinance allowing only drought-tolerant low water-use vegetation for landscaping in public rights of way and funding rebate programs for homeowners to replace low-efficiency plumbing fixtures and tear out their high water-use landscaping.

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