|
Edited on Sun Jul-23-06 11:40 AM by lonestarnot
Ruling on water says Arizonans don't have to be good neighbors
January 2006
U.S. Water News Online
PHOENIX -- A federal appeals court ruling says Arizonans don't have to be good neighbors when it comes to groundwater.
Landowners harmed by a neighbor's pumping of groundwater can legally be left high and dry without a right to sue for damages if the water was used in connection with reasonable use of the neighbor's own property, the 9th U.S. Circuit Court of Appeals said.
The three-judge panel's ruling overturned a trial court's ruling in favor of Casa Grande pecan farmers who lost their orchards after the water table sank dramatically because of pumping by a neighboring property owner, Abbott Laboratories Inc., a pharmaceutical and medical products maker headquartered in North Chicago, Ill.
One member of the panel said he agreed with the ruling legally but said it reflects a legal landscape in Arizona, particularly a 52-year-old Arizona Supreme Court ruling, that doesn't make much sense in a water-short state.
The farmers, the married couples of Ernest and Marrita Brady and James and Flossie Brady, had sued Abbott because their trees died when the aquifer dropped to 32 feet -- below the pecan trees' root systems -- from 16 feet.
Abbott had received a state permit to remove water so it could build a storage basement. It promised to both put the pumped water in onsite retention basins where it could eventually sink into the aquifer and to report its water removal activity.
The company encountered more water than it expected when it began digging in late 1997 and ended up removing 122 acre feet of water rather than the 2 acre feet specified under the state permit.
Because the amount of water pumped filled the basins, much of it ended up being channeled into a ditch that ran off Abbott's property.
Abbott acknowledged it violated the permit's conditions by removing so much water and incorrectly reporting its removals. The company agreed to pay a $6,508 fine to the state.
Separately, after the trees died and the Bradys learned of Abbott's pumping, they sued on grounds of negligence and nuisance and were awarded $1.2 million, split between compensatory and punitive damages.
Abbott appealed, contending that the company didn't have a liability to the farmers as long as the pumping was for reasonable use of the company's property.
The 9th Circuit panel agreed with Abbott and overturned U.S. District Judge James A. Teilborg's ruling.
The Arizona Supreme Court ruled in 1953 that use of groundwater in Arizona is governed by a common-law doctrine under which pumping is allowed as long as it is a reasonable use of the property, the 9th Circuit panel noted.
Because the Arizona high court ruled in a 1976 case that a mining company could not pump water from a farming area for use elsewhere for mining, it would have been different for Abbott if it was pumping the water for use off its property, the panel's opinion said.
A Seattle-based judge on the panel wrote separately that the federal court was bound to follow the state Supreme Court's interpretation of Arizona laws but that Arizona shouldn't hinge its reasonable-use doctrine solely on whether use of water benefits the property from which it is extracted.
"Accounting for the amount of water used, considering the utility of competing water uses, and acknowledging the rights of adjacent water users seems especially important in an arid, rapidly growing state like Arizona," Judge Jerome Farris wrote.
Unfortunately for the Bradys, Arizona statutes require groundwater users to consider the rights of adjacent property owners but don't create a legal right to sue to protect those rights from unreasonable interference, added Farris.
Arizonans willing to save water, want political action
Our Water, Our Future
Overview | Fact Sheet |
The Threat To Arizona’s Water
In over 80 percent of Arizona, developers can build huge subdivisions, even if the state declares the water supply insufficient. This has sobering implications for water quality and future growth in Arizona.
We all know that Arizona is a desert state where water is a precious commodity. In the past, conscientious foresight has kept clean water flowing to our taps, even through the current drought.
Now, irresponsible developers are putting water supplies in jeopardy by building at break-neck speed without ensuring there will be enough water for the future.
It is time for Arizona’s decision makers to act to ensure that our water needs can stand up to our state’s current and future growth.
Our Desert State Faces New Water Challenges
Arizona’s population is on track to double by 2030. Exploding development in areas where there are few protections and little water—such as the 200,000 homes planned for bedroom communities of Las Vegas—threatens to overwhelm Arizona’s water resources.
Even municipalities in Arizona that have conserved water, such as Phoenix and Tucson, could lose financial and water resources to bail out developments with inadequate water supplies.
Uncontrolled, Unplanned Growth
At the heart of Arizona’s water scarcity problems are weak state laws that fuel unplanned development but offer little help to deal with its consequences.
In over 80 percent of Arizona, developers can build huge subdivisions with hundreds of thousands of houses—even if the state declares the water supply of the region to be inadequate.
Protecting Our Water Resources
We can ensure that unsustainable, poorly planned growth doesn’t overwhelm Arizona’s clean water resources.
But with a rapidly increasing population and a strained water supply, Arizona decision-makers need to act now to make sure that Arizonans have enough water to meet our needs—now and in the future.
A Sustainable Water Future
Living in a desert means needing to grow responsibly since the next drought is always around the corner. It is common sense that development should only occur where there is enough water to support it.
Arizona PIRG is urging state leaders to pass laws to ensure that all Arizonans have a clean, lasting supply of water derived from a local source.
Developers must stop building beyond the limits of a sustainable water supply. Our water should be conserved, used efficiently, and restored wherever it is taken out of our water supply.
Arizona PIRG is working to protect our water so that there will be enough for Arizona to prosper—now and in the future.
Shaun McKinnon
The Arizona Republic
Jan. 7, 2005 12:00 AM
Most Arizonans are ready to do their part to protect the state's water resources, but they want something in return.
Leadership.
A new Arizona Republic Poll indicates that a majority of those surveyed believe the Legislature should grant Gov. Janet Napolitano's request for the authority to impose water conservation measures if a serious need arises. advertisement
Yet although those people seem willing to accept such measures, they want public officials to address wider issues.
Of those asked, nearly nine in 10 favor giving rural leaders the power to stop new subdivisions if developers can't guarantee a long-term water supply.
Those lopsided results in favor of conservation and regulation are likely the result of the ongoing drought, which has drawn attention to our water supply.
The clear message is that Arizonans believe the state needs stronger, more consistent leadership in water conservation and management.
"I get a little teed off when we travel along Union Hills in Glendale and the median is being watered in the midst of a rainstorm," said Claire Baker, a Peoria resident who participated in the poll. "Poor household people are being asked to do this and that, and the cities go on their merry way. I think they should be more conscientious than the people."
Since imposing strict limits on the use of groundwater in mostly urban areas 25 years ago, state leaders have left water policy to local communities, whose programs have varied widely, depending on their resources. During the drought, the vast majority of cities in Arizona have been reluctant to impose mandatory cutbacks in water use.
Instead, many have urged residents to use less on a voluntary basis.
Some city governments, however, have imposed limits on their departments' use and have met their goals.
Napolitano took similar action and ordered state agencies and universities to reduce consumption by 5 percent.
The governor can impose water restrictions throughout the state if a formal emergency is declared, a complex process.
But Napolitano believes she should have more authority to implement conservation measures in times of drought.
In the Republic Poll, 57 percent of those asked favor giving Napolitano that power, while 37 percent oppose the idea.
And although some leaders have been reluctant to use water to restrict growth, the Republic Poll indicates that 87 percent of those surveyed believe local governments should be able to consider water availability in making decisions about new development. Just 8 percent oppose the idea
In Phoenix, Tucson and other groundwater management areas, cities and developers must prove they can provide an assured water supply for 100 years before they can build homes.
In rural areas, no such rules exist. Some rural towns and cities have been sued when trying to reject plans based solely on water availability.
"It's worrisome," said Tempe resident Mary Ann Gallagher, one of those who responded. "Sometimes, builders are allowed to build without adequate water. Pine was an example. That bothers me more than anything, definitely."
In Pine, water shortages are common, especially during the summer months, when summer homes are full.
More-serious problems could occur in areas north of Prescott, where groundwater is already mined heavily, or near Sierra Vista, where the San Pedro River is suffering from growth-related pressures.
The poll was based on telephone interviews with 602 Arizona adults Jan. 3-5. The margin of error was plus or minus 4 percentage points.
Gambling on water
Vegas builder's Mohave County plan stirs worries
Shaun McKinnon
The Arizona Republic
Feb. 5, 2006 12:00 AM
If Arizona lawmakers want a reason to rethink the state's rural water laws, Earl Kemp figures he's stuck dead center in the middle of Exhibit A.
Kemp watches daily as earth-moving equipment rumbles past his home in rural Golden Valley, near Kingman, pushing aside dirt and desert scrub as a Las Vegas developer prepares to build the first of more than 130,000 homes. It's an eye-popping plan that, when the final shingle is nailed in 20 or 30 years, will leave behind a city the size of Mesa in a 40-mile radius.
The developer, Jim Rhodes, assembled ample land and promised to build roads, parks, schools and shopping centers. What he couldn't promise, not with certainty, was that he could provide enough water for all the people, a failing Kemp thought would doom the project. advertisement
"There's no water out here to begin with," said Kemp, who pays to have water hauled in because he can't hook up to one of the few small systems that serve Golden Valley. "We're depleting the aquifer day by day as it is. The native plants are dying. Everything's disappearing before our eyes because it's so dry."
But water worries haven't derailed the project. The Mohave County Board of Supervisors approved all but one of Rhodes' subdivisions in early December, and the fifth was hung up on land issues, not water. The Arizona Department of Water Resources has yet to finish its assessment of whether the area has adequate water to sustain nearly 400,000 people.
Even if the state finds the water supply inadequate - that's what appears likely unless the builder's engineers can shore up their studies - Rhodes can keep building. While developers must prove they have a 100-year assured water supply in Phoenix, Tucson and Prescott, they face no such regulation in rural Arizona and, under the law, can build even if the state rules their supply is inadequate.
Rep. Tom O'Halleran, R-Sedona, has filed bills in the Legislature that would force developers to disclose more information about water to buyers and grant cities and counties the authority to reject subdivisions that lack adequate water supplies.
But those bills don't have widespread support in rural Arizona, where elected officials resist state interference even as they complain about growing pains and dwindling water supplies. Many officials worry about losing revenue if growth slows.
Gov. Janet Napolitano, who committed last year to help reform rural water laws, is taking a different approach, championing a program that would help rural communities better manage water resources and offer loans and grants to build needed infrastructure.
"That is the future of rural management, plans designed by the people whom it will be imposed on," said Herb Guenther, director of the state Department of Water Resources. "It's a whole new concept. They set the goals defining what is important to protect in their community. We have to get everybody on board slowly."
Building a crisis
Slowly is not a word Denise Bensusan would use to describe the arrival of big-city developers in Kingman. In the space of a year, maybe two, builders have proposed more than 160,000 single-family homes, apartments and condominiums, more housing units than currently exist in all of Mohave County.
"We are in a crisis," said Bensusan, a county resident who helps spread the word about the development on a Web site she manages. "Our entities are not listening to us. The way these plans were rushed through, it was a joke."
Mohave County officials don't deny that they are missing some information about water supplies, but they insist they are only following the law. They angered opponents of the subdivisions when they said state law prevented them from rejecting proposals solely because the builders couldn't guarantee water supplies.
Because groundwater is considered a property right, county officials are reluctant to impose restrictions they can't enforce. In rural Arizona, the only real restrictions apply to wells, and then only to wells that produce large quantities.
"I'm all for private property rights, definitely," Bensusan said. "But when our small group was invited to participate in the Long Mountain area plan, we were called anti-growth and all we were doing is talking about how much water do we have, how much density can we handle here, what about the infrastructure, the roads."
Water studies critical
Rhodes Homes, along with some of the other developers planning to build in Mohave County, has submitted its project for review by the Water Resources Department. That agency will issue a determination of "adequate" or "inadequate" to meet residents' needs for 100 years.
The actual result isn't binding, but the builders have to disclose the finding to the first buyers of the subdivision parcels. So far, no lawmaker has proposed changing that law.
"This is a very serious issue," said Lela Prashad, an advocate for Arizona Public Interest Research Group. "In 80 percent of the state, there are no protections so that when people buy a home with an inadequate water supply, they know it." Arizona PIRG is supporting three bills so far: one that would force every seller to disclose a parcel's water supply condition, one that would grant local governments the authority to reject a project based on water, and one that would require more regional planning on water resources.
"It's all interconnected," Prashad said. "What's happening in Kingman or Prescott or Payson affects us here in Phoenix. If there's growth out there that's occurring and there's not enough water, it's going to hurt the state's economy. It will also hurt the environment and our quality of life as a state."
Rhodes and other developers say that's not their aim. They promise high-quality communities that will improve their surroundings without taxing resources. The firm Rhodes hired to measure water resources includes a former state water engineer with a background in rural issues.
State officials say they rely on the developer to submit the best information possible. That's especially critical in Mohave County, where little is known about the aquifers beneath the undeveloped areas. Some studies suggest ample water, but there's been no real confirmation.
"We're trying to do everything possible so our findings would be based upon good science rather than just a guess," said Tom Whitmer, a manager in the department's regional water planning division. "But we do have to rely extensively on what they provide us."
Whitmer said the department has asked Rhodes and another developer, Leonard Mardian, for more supporting information about the Golden Valley projects. If the state had to issue a report now, Whitmer said, it would conclude that there is inadequate water to sustain the homes.
A Vegas suburb?
Bill Abbott hasn't conducted any engineering studies, but he can offer firsthand evidence that it isn't easy to maintain water in the arid valleys outside Kingman. He and his wife kept a few horses on their small spread and lived for years off two wells.
Then the wells started to slow and before long, they'd nearly gone dry. Abbott had to start hauling water and wound up selling his horses. He worries now about selling so many new homes without assurances that the water will hold out.
"When I see my wells going dry, when I see my horse trough going dry, I don't go out and buy more horses," he said.
It's no secret that Rhodes intends to market at least some of the houses to Las Vegas-area workers, creating a far-flung bedroom community for people who want affordable homes and don't mind a drive of an hour or more.
The completion in 2008 of a bridge designed to bypass Hoover Dam will make such commutes possible and could leave Mohave County with tens of thousands of residents who work in Nevada but live in Arizona.
Abbott likes to pull out an old water study of the Golden Valley from 1978.
The engineers were worried about water back then, too, wringing their hands over whether the aquifers could support the community.
The population then? 199 people.
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
