12/5/2012 8:49:00 AM New legislation could help rural areas develop water supplies; current laws tie county's hands
By Joanna Dodder Nellans Contributing Reporter
Arizona House Speaker Andy Tobin of Paulden is working on legislation to implement recommendations from the Arizona Water Resources Development Commission and help secure regional water supplies.
Tobin's bill created the temporary commission in 2010.
He said Friday he's working on a bill to implement some of the commission's recommendations, but it's too early to say which of the commission's recommendations the bill will include. The next legislative session starts in January.
The commission recommended a new state law to allow the creation of "regional water augmentation authorities."
The authorities would allow local governments and water providers to pool their resources.
Under the commission recommendation, the authorities would have the power to plan, design, build, own and operate water projects. They also could buy and sell water rights, condemn property for water projects such as pipelines, charge fees for services and water sales, and issue revenue bonds.
The commission also recommended that the authorities should be eligible for low-interest loans from the state's Water Supply Development Revolving Fund.
The commission recommends requiring counties and municipalities to adopt the state's "water adequacy rule" before getting to use such loans to help local water providers and subdivisions outside of active management areas.
The commission discussed asking the Legislature to loosen the state water adequacy law to let counties adopt the adequacy rule by a simple majority vote instead of the required unanimous vote. But the commission couldn't agree on that recommendation, so it's not in its final list of recommendations issued in late September.
The 2007 state law creating the adequacy rule allows counties and municipalities to reject new subdivisions outside of Active Management Areas if they don't prove to the Arizona Department of Water Resources that they have adequate supplies of water for 100 years. State law already requires developers in the more urban active management areas, such as the 485-square-mile Prescott AMA, to prove they have 100-year water supplies.
Then-Rep. Lucy Mason of Prescott was the sponsor of the adequacy rule bill. She amended it to add the unanimous requirement on the county supervisors.
So far only two counties and two municipalities have adopted the adequacy rule. They are Cochise and Yuma counties, automatically including all their municipalities; and the municipalities of Clarkdale and Patagonia.
Yavapai County Supervisor Carol Springer has adamantly opposed the rule, arguing it would take away local control. Springer's term ends in December and she didn't seek re-election to the new board that will expand to five members.
Without that adequacy rule, Deputy County Attorney Jack Fields and county planning officials have advised the Yavapai supervisors and planning commissioners not to ask subdivision developers questions about water supplies when developers seek zoning changes and planned area development approvals (PADs), even if the proposals could increase population densities and water use. However, county officials can ask about other health and safety issues such as wildlife impacts.
"Water's different in this state," Fields said.
A recent example was the recent Yavapai Ranch application for a PAD containing 12,500 homes and 95 acres of commercial development in a remote rural area about 30 miles north of Prescott. Supervisors approved the application.
State law requires subdivisions outside of AMAs to get water adequacy determinations from the state before returning to local governments to seek approvals for plats that show more detailed development plans. But if Yavapai Ranch owner Fred Ruskin decides he doesn't want to spend any money on water studies, he can just ask the state to automatically issue a determination of an inadequate water supply since Yavapai hasn't adopted the adequacy rule.
When the Yavapai Ranch comes back to the county seeking plat approval, then county officials can talk about water supplies, too, Fields said.
But Fields advises supervisors not to deny a subdivision plat because of an inadequate water supply, since Yavapai supervisors have not adopted the water adequacy rule.
Coconino County Deputy Attorney Bill Ring said he advises Coconino supervisors not to ask subdivision developers about their water supplies during rezoning requests. But if the state later concludes they don't have adequate water supplies, the county can require lower densities.
Ring, who used to represent the Yavapai Ranch, said case law is clear that counties don't have the authority to make zoning decisions based on groundwater supplies.
Various counties take different stances, Arizona Department of water Resources Assistant Director Doug Dunham said.
"There is a difference of opinion about whether counties can talk about water at the zoning stage," he said.
His agency believes counties may ask about water supplies as long as it's a normal routine. At the initial zoning phase, they can even ask the developer to seek a water adequacy ruling from the state. But they can't reject a subdivision for having an inadequate water supply unless they adopt the adequacy rule.
Confusion about the subject is what led to the state law allowing local governments to adopt the adequacy rule, Dunham said.
Other state laws contribute to the confusion. Groundwater is subject to a common law "reasonable and beneficial use" standard, while surface water is subject to a "first in time, first in right" standard under Arizona's bifurcated water laws, Ring noted.