Government Goings-on: To Your Scattered Bodies Go

—Alan Dulaney

Ever since the Governor’s Water Solutions Discussions essentially ended with summer, we have been waiting for the resultant legislation. And waiting. And waiting.

Now it’s over, and the result bears little resemblance to what was negotiated by the various interests. Senator Gail Griffin dropped several bills—one big one (SB 1507) and several smaller ones comprising different parts of the big one—up to 11 by my count so far. Representative Rusty Bowers introduced an identical bill in the House, HB 2512. This unusual tactic may be designed to ensure that some of the parts get through because, as a whole, it is a disappointing package. If you are a quail hunter, you have just flushed the biggest covey you have ever seen, and you don’t know where to shoot first.

SB 1507 (and HB 2512) have everything in them, and thus comprise the biggest targets out there. For descriptive purposes, it may be easier to work through the individual bills that carry the duplicate parts.

SB 1508 is all about desalination, requiring ADWR to prepare an action plan based on brackish groundwater, along with possible binational agreements to gain access to ocean water. But no study will be complete, nor will desal plants built and operating prior to the coming shortage. This actually doesn’t look bad, for window dressing.

SB 1509 adds language to the existing statutes prohibiting out-of-state water transfers, requiring approval by the ADWR Director. It also requires that the Legislature and the Governor vote to approve the transfer and expands the definition of water to surface, groundwater, Colorado River water, or any other category of water. No transfer will ever get through that process.

SB 1510 allows groundwater to be used to irrigate plants in above-ground containers. An Irrigation Grandfathered Right (IGFR) can be used for such container irrigation, with certain restrictions. Greenhouses will benefit. At some point, a rationale for this bill will have to appear.

SB 1511 revisits the issue of irrigation right extinguishments in the Pinal AMA, which we have seen every year for several years. ADWR would be required to recalculate available groundwater for the Pinal AMA such that extinguished irrigation rights could support subdivisions. Eventually this plan would slither into the other AMAs, to the detriment of the Assured Water Supply program.

SB 1512 goes where no AMA has gone before, into the Sixth Management Plan, but not beyond. There is a lot of language about conservation in this bill, both for municipal providers and farmers. No legislative staffer wrote anything this complicated. The lack of Management Plans beyond the Sixth is disappointing.

SB 1513 redefines effluent as “recycled water,” but only for ADWR informational purposes. Still, it is movement in the right direction, given the recent ADEQ rules on direct potable reuse.

SB 1514 moves the Natural Resource Conservation Districts out from the Land Department and under the supervision of the State Forester (who is also now NRC Commissioner). Sections were added that require the recognition of water conservation within various districts, including watershed protection programs. Forest health, multiple uses, and stormwater runoff protection are called out for promotion, and the NRDC Commissioner/State Forester will provide staff support for the Arizona Water Protection Fund.

SB 1515 would allow a county board of supervisors to back out of the Adequate Water Supply requirement for new subdivisions even if previously adopted. Only three rural counties now require a favorable determination from ADWR on water supply prior to approving any subdivision. Remember the master-planned community in Cochise County a few years ago that couldn’t be approved as having a 100-year supply of water because of challenges to the legal availability of groundwater? Well, call this bill the Gail Griffin fix, or the Sierra Vista Special; someone is determined to get those 7,000 homes built, regardless of impact on the San Pedro River. The concept has cropped up before in 2016, and it was a terrible idea then—so bad that Governor Ducey vetoed it. It hasn’t improved with age.

SB 1516 forbids CAWCD from asserting sovereign immunity in litigation involving subcontractors for CAP water. This was the issue that ignited the feud between CAP and ADWR. Implicit in the bill is sovereign immunity for CAWCD in every other matter, hardly helpful to having Arizona speak with one voice.

SB 1493 shifts responsibility for Clean Water Act Section 404 permitting over to ADEQ from the U.S. EPA. There is much discussion of dredge and fill and associated fees. The language clearly comes from ADEQ.

SB 1494 likewise shifts authority from EPA to ADEQ—in this instance the Underground Injection Control program. The ADEQ UIC permitting process will look substantially the same as the Federal process. However, UIC Class V injection well permits would not conflict with Aquifer Protection Program permits. ADEQ is behind this bill as well.

HB 2410 must be mentioned. Back in 2016 the Arizona Hydrological Society, American Institute of Professional Geologists, and several other professional societies adamantly opposed a bill that would remove geologists, amongst others, from the Board of Technical Registration process. Registered Geologists were apparently not welcome in geologically complex Arizona. The fight was not altogether successful in that registration remained but on a voluntary basis. HB 2410 would strip the last vestiges of registration for geologists from state law. However, quick action by several societies has stalled this bill and the promise is that it will not be read. Stay alert; sometimes vampires arise from the dead.

Everything is under control of Senator Gail Griffin and Representative Rusty Bowers, two skilled legislative warriors. Their strategy is not yet clear, but the Governor’s Office did not get anything it really wanted. There is nothing that clarifies that Arizona speaks with one voice in Colorado River issues. No language addresses who controls forbearance or system conservation programs designed to slow the drop in Lake Mead water level elevations. Nothing sets up conditions for the success of the Drought Contingency Plan Plus, which now looks dead. It is almost as if large interests got behind one organization, which sees itself as a rival power to the State, and guaranteed that nothing substantive would emerge. And that is not at all what Arizona needs.

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