or, Are You Adequate?

This is the story of a piece of legislation. Can you feel your eyes glazing over at that abstract, Latin-rooted word? But sadly, these arcane, abstruse, icky-picky matters matter in our lives, and this is water legislation.
So let’s try to splash a little charisma on it – make it a real Tale, with Defenders and Attackers, with those the Legislation aims to protect and those who believe it will hurt them, with Why You Should Care. We can start right there, because this law would empower rural communities to block subdivisions when there’s not enough water. There’s nothing to stop them now.

So you might care if you bought property in a development out in the county that had enough water, but then a new subdivision started up next door, pumping and dropping your well level. You might care if you’re the City of Prescott, planning to pump water from its ranch in the Big Chino and ship it south in a very expensive pipeline. There’s nothing to stop a nearby subdivision from sucking your water away. And you might care now, because this month in Yavapai County, we may see the opening salvos over this law.
Our Tale’s setting is Arizona, Land of Little Rain. Water hides underground, so folks began pumping, often not wisely but too well. Unable to ignore the problem, in 1980 the legislature created the Arizona Department of Water Resources, or ADWR – known sometimes in these pages as the Great and (sort of) Powerful Wizard, Adwir – to look after the state’s groundwater.
The Department-Wizard set up five Active Management Areas, Enchanted Lands covering the groundwater basins that growing populations were most likely to pump dry. The bulk of Arizona’s lands lie outside these AMAs. So Adwir set up two programs to qualify would-be water pumpers, one for inside and one for outside the AMAs. (Warning: what follows will sound like the instructions printed inside the box lid of a very complex board game.)

In the Lands of Assured Water

Adwir’s AMA groundwater protection plan involves calculating a rough balance (called safe yield) for each Enchanted Land as a whole, to keep users from pumping more water than is going back underground. This Adwir implements through its Assured Water Supply program. Towns or water companies wanting to pump and sell water must prove to Adwir that they can reliably do so for 100 years. Once persuaded, Adwir dubs such candidates Designated Water Providers. Adwir’s minion, Scott Miller, explained recently to a small gathering of citizens in Prescott that Adwir watches a Designated Water Provider’s performance carefully. “Adwir can modify a Designation,” he said. “It’s a living, breathing thing that we monitor year by year.”

For developers wishing to subdivide AMA land, the deal is slightly different. They must project their subdivision’s 100-year water demand. Adwir reviews this estimate, accounting for not only their demand, but all the area’s water use, then issues a Certificate for the subdivision’s right to pump a certain amount of water, hoping the projections are right – because it’s permanent.

So the Assured Water Supply program gives communities inside the Enchanted AMAs some tools, at least, to prevent growing beyond the available water supply.

In the Lands of Adequate… or, OK, maybe Inadequate, Water

Outside the AMAs, the Assured program does not apply. Instead, for these thus far low-population territories, Adwir developed a program called Adequacy. Based on law developed in 1973, before Adwir’s birth, Adequacy began as “a kind of buyer beware program, to give homebuyers information about the water supply in the area,” in Scott Miller’s words. Currently, to receive a Determination of Adequacy, a developer must prove to Adwir that there’s “adequate water” to supply the subdivision, for the magic term of 100 years, without dropping the water table below the magic (or – “random”?) depth of 1,200 feet. The developer must meet the Five Criteria (all five, Miller stressed – see box).

How To Be Adequate

How does Adwir decide there’s adequate water to serve the subdivision you want to build outside of the Enchanted AMA? You must prove to Adwir that your proposed water supply passes the Five Tests – all of them, or it’s Inadequate. You work with Adwir, you get a hydrology report… And this is what you demonstrate:

1. Physical Availability: After 100 years of pumping the amount you say you need, the “depth to static water” won’t exceed 1,200 feet.* Get a hydrology report.

2. Legal Availability: Check with the lawyers.

3. Continuous Availability: Hydrology report and lawyers.

4. Financial Capability (yours): Adwir will take the word of your local platting authority.

5. Suitable Quality: Adwir will take the word of fellow wizard Adeq (the Department of Environmental Quality)

* There’s an exception. (You knew there would be – what fun are rules without exceptions?) The 1,200-foot rule applies to subdivisions with a central water supplier. But you can propose a “dry lot subdivision,” where each homeowner drills a well, and then this limit is only 400 feet.

Here too, in its final Determination, Adwir considers all committed water use in the area. So, what if it appears the available water won’t meet the planned subdivision’s needs? Negotiations ensue. Adjustments follow. “Applicants may scale back their project to meet a smaller demand,” says Miller.

OK, but what if the developer just can’t meet the Five Criteria, and wants to develop anyway? The answer makes it clear why the Wizard of Wizards, ADWR head Herb Guenther, called the Adequacy program dysfunctional – and why his Minion, Scott Miller, says simply, “It’s broken.” These Determinations are nothing more than evaluations of the existing situation, not Certifications or Designations that permit (or forbid) someone to do something. Creating the Department, legislators did not give Adwir the power to stop a development from going in, even if it’s clear there’s not enough water to meet the Criteria. Permitting or forbidding developments is the right of counties, cities, towns. All Adwir can do is issue a Determination of Inadequacy.

Inadequacy to the Nth power: more “Why You Should Care”

But wouldn’t Inadequacy be a bad thing? Hmmm. Well, some developers actually want a Determination of Inadequacy. Once it’s out on the table, they can let their potential buyers know that Adwir determines there’s not enough water. And here’s one point where Inadequacy ramps up into Dysfunction. You may be aware that if you buy one of these 36-acre parcels, you can split it into five parcels and sell them off. Then the buyers can split their parcels into five, down to two acres, and sell again.

And with each sale, the new buyer gets the word about the Determination of Inadequacy, right? Uh – no. That word has to be passed along in the first sale, but not thereafter. (If the goal was “let the buyer beware,” looks like we’re pretty far from that goal.)

But wait – there’s more dysfunction! Say you buy a nice ranchette in a Big Chino subdivision with a Determination of Adequacy. But then, someone buys that big spread right next door and starts to develop it – with a Determination of Inadequacy. They’re pumping anyway, and your well level starts dropping. Next thing you know, you’re Inadequate, too. The value you thought your purchased land had, or your promises to your buyers, evaporate. Nothing protects you from this scenario – or from more widespread scenarios: Miller notes that Inadequacy Dysfunction could drop “not only well levels but water levels in general, maybe even to the point of dewatering the aquifer.” Anyone following the story of our local free-running, year-round river, fed by the Big Chino aquifer, now hears the opening strains of “Bye-Bye, Verde.”

Why is it like this? Because, back in 1973, nobody really figured on the need to protect groundwater resources in the vast, sometimes difficult-to-inhabit rural lands outside the AMAs. Nobody foresaw ranchers ready to sell, and a real estate market in full frenzy, as it was only yesterday, when plopping tens of thousands of homes into the Arizona hinterlands seemed like a great investment. (In another five or eight years, if history is any guide, it will again.) Nobody imagined Prescott Lakes, Piñon Oaks, Quailwood, and a time when the tri-cities would look to the Big Chino for water.

Miller drops the bomb

Evidently the light dawned slowly. In 1991, Prescott won the right to import water into its Enchanted AMA from the Big Chino, outside AMA boundaries. In early 1999, Adwir finally declared openly that PrAMA (the Prescott AMA), known sometimes in these pages as Prince Ama, was depleting the princely groundwater within the Enchanted Land. But even when it became obvious that the Prescott would have to exercise its importation right – still, no one seems to have thought through the implications of Inadequacy Dysfunction.
But they’re thinking it through now.

Scott Miller gave clear, ominous expression to Adwir’s “issue that we have with this [dysfunctional] Adequacy program.” Prescott must import that water as the only hope for the Land of Prince Ama to reach safe yield, halting groundwater depletion; also to maintain Prescott’s status as a Designated Assured Water Provider (alone in the AMA). Said Miller, “You are exporting water from an area that is regulated by the Adequacy program, and relying on it to make an Assured Water determination…. [but] anybody could just come in and start pumping without taking you into account, which could void the Adequacy Determination we made [for your water ranch] or maybe reduce it, and then we’d have to go back and change your Assured determination, and say it’s not as much as we originally thought.”

Whew. And how bad would that be? It would mean further restricting the already limited development “on new groundwater” within the Land of Prince Ama, or even halting it. That amount is almost done anyway, and the “paper water” that the Prince can scratch together leaves little room for expansion. Safe yield is a pipe dream. Without Big Chino water, the Prince is Inadequate, indeed.

The little blue diamond-shaped pill for Inadequacy

Even before the Big Bad News – the threat to Prescott’s pipeline – dawned clearly, Adwir and Governor Janet, the Napolitano, “started getting phone calls from rural Arizonans, wondering what we could do about rural water supplies,” reports Minion Miller, “and how could we amend groundwater laws to better protect the water resource?” So they convened government representatives from around the Dry Land of Arizona, plus Stakeholders of many types and descriptions, and these 50-some souls formed the SWAG (Statewide Water Advisory Group).

From mid-2006 this group chewed over what to do. “One of the big proposals immediately,” says Miller, “was to require all new subdivisions around the state to have an adequate water supply.” Or else? Local authorities could deny permission to build. “That didn’t exactly fly, politically,” Miller explains dryly, “so it got watered down, before we got it to the legislature.” Some SWAG members proposed legislation allowing counties to “opt in” to an adequacy requirement; others then “watered it down” with a poison-apple amendment. And now Adwir’s minions tour the state, telling the Tale, championing the Legislation. Here’s how the Tale went down in Arizona.

The Magic-Adequacy-Pill Legislation took shape as Senate Bill 1575, sponsored by State Senator Marsha Arzberger of Willcox, and House Bill 2693, carried by Lucy Mason, our District 1 state representative. Applying only to the Lands of Adequacy/Inadequacy outside the AMAs, the Legislation empowers a county’s supervisors to require proof of Adequacy before a subdivision proceeds. Here’s the poison-apple amendment: The supervisors must vote unanimously to adopt this power. (For other fairy-tale wrinkles, see box. And there’s a “carrot” to fund water project assistance to municipalities opting in.)

Defenders and Attackers

Lady Lucy, the Legislation’s champion, brought Wizard of Wizards (ADWR head) Herb Guenther to address Prescott City Council last February. He told them that, given local conditions, Yavapai County should be out front to adopt this new Legislation. But wait – remember the unanimous-vote poison apple? In the meeting with Minion Miller, Prescott Mayor-Elect Jack Wilson queried, “We have a supervisor who’s publicly stated she’s not going to adopt this provision – so that puts the City of Prescott and Prescott Valley at risk, because the supervisor is taking that stand?” Miller smiled ambiguously. “Perhaps,” he said. “Perhaps.” The supervisor opposed to opting in is sometimes known in these pages as the Powerful Sorceress, Carol of Springer. So much for Yavapai County.

Now, some folks believe that any empowering of government disempowers them. The powerful Cattle Growers Assn. brought the poison-apple unanimity amendment to SWAG. Lady Lucy worked hard to bring everyone to the table to produce a bill that would see the light of day. She voices support for the unanimity amendment because once a county opts in, it can never opt out.

“This is forever,” she says, so it’s important the board be unanimous. “If a county really wants it,” she adds, “that person who is dragging their feet probably won’t be elected the next time.” Unanimity opponents included District 1 senator Tom O'Halleran of Sedona and Great Wizard Guenther; they did not prevail.

Sorceress Springer believes that opting in to the Adequacy Legislation, far from giving communities local control over water use, will erode it. She also fears lawsuits under the Prop 207 law, which deems that a governmental act lowering a property’s value constitutes an improper “taking” (as in eminent domain), and the owner can sue to recover the loss. If you apply to subdivide your ranch but you can’t prove Adequacy, the land’s value might tank. You might sue. That law is new and untried in the courts, but the Sorceress believes it would bang into the Adequacy Legislation, exploding in a shower of litigation sufficient to keep Arizona attorneys in Bruno Maglis for generations – hydrologists too, perhaps, if owners or developers dispute an Inadequate label – and bankrupting counties. (Interesting coincidence: Who championed Prop 207? – the Sorceress.)

But the Prop 207 law has exemptions, one of them providing for the interest of public health and safety. Adwir, Miller explained, believes that should ward off lawsuits; if protecting the groundwater supply isn’t for public health and safety, what is? That may be, but there’s no question of the potential for conflict. The flat Big Chino grassland hosts Prescott’s water ranch and, more recently, Chino Valley’s new water source. Its groundwater supplies the Verde River headwaters. It is also where the private, developable parcels – the disappearing ranches – concentrate in northern Yavapai County. Owners and developers of very large ranches there already project subdivisions of up to 30,000 homes.

The protected, the hurt, and the skeptical

So who will this Legislation hurt? Sorceress Springer repeats her belief that it will stop growth dead, that Yavapai County must grow or die. It could hurt folks holding land they hoped to turn to profit, ranchers whose land is their retirement plan, or whose heirs can’t cover the taxes without selling. Who will it protect? Those who thought they had enough water, until someone else stuck in a new straw. These beneficiaries include current residents, and the cities planning to import Big Chino water. It will help communities say, “No, unless you bring your own water, you can’t build that.” And Miller held out a magic charm: In the upcoming rulemaking process that accompanies legislation, Stakeholders will help Adwir develop particular Adequacy criteria for different groundwater basins, accommodating local differences to some degree.
Skeptics point out that the Legislation won’t touch the private wells of wildcat development, proliferating ranchette by ranchette and not in subdivisions. Yavapai County has more of these “exempt” domestic wells than any other in Arizona – 20,000 to 27,000, no one knows for sure.
Sir John of Munderloh, Water Knight (er – water resources manager) of Prescott Valley, is skeptical that Adwir will be able to use the Inadequacy Dysfunction to truncate Prescott’s Assured status. He stated, “A possible failure of the Big Chino water to meet the test as an assured water supply does not preempt the body of law that allows the water to be imported to the Prescott AMA.” More bluntly: Even if the City of Prescott’s Big Chino Water Ranch goes Inadequate, Prescott still has the legal right to import that water. But – when asked, if the city doesn’t use the imported water “for Assured Water Supply purposes, in other words, subdivision use,” an evasive action he hinted the city might take, then how? – Munderloh declined to state.

Upcoming episodes

At the meeting, longtime County Supervisor/Cowboy Chip Davis questioned Miller to be sure he understood all the details, then summed up: “If you don’t adopt, you’re encouraging sprawl and development out in the rural areas.” Retorted Miller, “Good point.” Cowboy Chip, a Legislation supporter, represents the Verde Valley side of Yavapai County, where folks have long eyed development over the Verde sourcewaters with foreboding. Cowboy Chip declared that the Supervisors would soon notify all the Yavapai cities and towns of an early November public hearing on the Legislation and encouraged Adwir to present it again there. (Online ed. note, 11/2/07 — it appears this meeting will take place in December. Watch for it!) He even spoke of possible action on opting in.

If you can’t bear to miss the fireworks, watch your paper. Tune in to http://www.co.yavapai.az.us/ and look for Meetings. Become part of the Tale.

(This story contains a minor edit from the print version: the phrase "poison-apple" now appears in one more place, to make it crystal clear what's going on. —Online ed.)

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