Originally published Friday, August 10, 2018 at 05:57a.m.

Howard Fischer

Capitol Media Services

PHOENIX – The Arizona Supreme Court has given the go-ahead to a 7,000-home development near Sierra Vista even if it could dry up the San Pedro River.

In a ruling with statewide implications, particularly for rural areas, four of the seven justices concluded today that the Department of Water Resources is required only to consider whether a developer – or the water company that will serve the area – has a 100-year supply of water beneath its land, the legal right to the water and the financial ability to supply it.

More to the point, the majority said the state agency need not consider other potential future claims for the same underground water – in this case, the federal Bureau of Land Management – or even the possibility that those other claims could end up leaving the development and the people who buy homes there without any water.

Justice John Lopez, writing for the majority, acknowledged that could create situations where developers are given the go-ahead for a project that would leave other landowners without sufficient water. But he said that's the way he and three of his colleagues read the law.

"Whether the adequate water supply designation process should go further in protecting consumers is a matter for the Legislature,'' Lopez wrote. And he said that the way water laws are crafted "demonstrates the Legislature's intent to provide only limited protection to consumers and simultaneously encourage development.''

But today's ruling is unlikely to be the last word in whether Castle & Cooke Inc. can construct the development about five miles from the river and whether the Pueblo del Sol Water Co. can pump an extra 3,400 acre-feet of water a year – about 1.1 billion gallons – out of the ground for the project.

Robin Silver of the Center for Biological Diversity, one of the plaintiffs in the case, vowed an appeal to federal court. He said that, given Arizona's laws, that may be the only way to protect the river.

"This is what happens when we live in a state dominated by Republican, uncaring Republicans,'' he said, and "courts that interpret the law to the benefit of developers.''

Part of the issue relates to the fact that, in Arizona, the law considers groundwater as belonging to the person who owns the property. That means the owner can withdraw as much as can reasonably be used on the property. More significant, Lopez said, it "relieves the landowner from liability for a resulting diminution of another landowner's water supply.''

Officially, this case deals with a very specific problem.

In the 1980s, Congress designated about 36 miles of the San Pedro River basis as a national conservation area. More to the point, Congress created a federal water right for the area "in a quantity sufficient to fulfill the purpose'' of protecting the riparian area.

Only thing is, the process of determining water rights to the entire Gila basin, which includes the San Pedro, have been going on now for about 40 years. And that makes the amount of water to which BLM is entitled "unquantified'' at the moment.

Challengers, including the BLM and Silver's group, argued that DWR could not conclude that the water company had the legal right to the water without considering whether it would impair the yet-to-be-adjudicated federal claim. That goes to the hydrological questions of whether taking more water from the aquifer will dry up the San Pedro, one of the few remaining free-flowing rivers in the Southwest.

But Lopez said he reads the law to mean that development in the area need not be brought to a halt while these outstanding issues are resolved.

Today's ruling drew a pair of stinging dissents.

"Essentially, the majority would allow the Arizona Department of Water Resources to ignore the legal inadequacy of a proposed water supply until the problem becomes a reality,'' wrote Chief Justice Scott Bales. "This interpretation defeats the adequate water supply's manifest purpose to proactively protect consumers in Arizona BEFORE they purchase property.''

Lopez conceded that it could turn out there really isn't enough water in the area for the development if it turns out the riparian area needs some of that.

In fact, attorneys for the water company conceded during the hearing earlier this year that some of its claims to the water could evaporate – leaving homebuyers high and dry – if the BLM's demands force it to reduce its pumping. And they said the company would "have no problem'' letting buyers know that.

"We admonish Pueblo to perform on its promise to be forthright with consumers about the potential impact of BLM's federal reserved water right on the development's water supply,'' Lopez wrote.

In his own dissent, Justice Clint Bolick conceded that the Legislature, in requiring a finding that water is "legally available,'' never defined exactly what that means. But he derided the majority's conclusion that Arizona courts are bound by how the state agency has historically interpreted that term.

"For instance, if the agency had issued a preexisting rule saying the director should determine legal availability by eating a jelly sandwich, surely we would not apply that definition even if the Legislature subsequently adopted the legal availability terminology without defining it,'' he wrote.