Arizona’s Supreme Court has ruled a new 7,000 unit residential housing development planned near the San Pedro River can move forward, ruling Arizona’s Department of Water Resources'(DWR) had followed relevant state law when it concluded there is enough groundwater in a nearby desert aquifer to supply the needs of the proposed development.
Conservationists sued DWR over its decision to allow the Pueblo Del Sol Water Company to withdraw water from an aquifer 5 miles away from the proposed “Tribute” housing development to supply its water needs.
In the first step of the legal battle, they argued before the Maricopa County Superior Court, the court should block the development on the grounds the water supply was insufficient to satisfy the needs of wildlife and wildlands, including the federal government’s “reserved” water rights, for national forests, national parks and other public lands. The county court ruled in their favor, saying DWR should have considered potential legal claims possibly affecting the availability of water, including the federal government’s reserved water rights.
In 2016, a court of appeals tossed out the county court’s decision. The appeals court determined state law does not require and cannot expect DWR to anticipate legal challenges when making regulatory decisions. Conservationists appealed the ruling to the State Supreme Court which affirmed the appeals court’s decision.
Sticking To Statute’s Language
Justice John R. Lopez IV, who wrote the state Supreme Court opinion, ruled the Department of Water Resources doesn’t have the authority or responsibility to quantify the federal government’s water rights – rights they, in fact, have yet to specify or claim.
“This case is not about the wisdom of the policy underlying the adequate water supply statute,” Lopez wrote in the court’s decision. “Our task is to discern the statute’s meaning [and under current state law, DWR] “is not required to consider unquantified federal reserved water rights.”
Tom Buschatzke, DWR’s director, praised the decision, telling azcentral.com he believes the ruling makes clear his agency should limit the speculation when analyzing whether there are adequate water supplies for a proposed development.
“I think the court analyzed this issue correctly, … limit[ing] the speculation,” Buschatzke told azcentral.com. “[F]rom our perspective, that allows them [the developers] to move forward.”
Kenneth Artz ([email protected]) writes from Dallas, Texas.