Environmentalists' lawsuit seeks to halt big development near San Pedro River

Environmentalists are filing their second lawsuit this summer seeking to force tougher state action to limit or block groundwater pumping near the imperiled San Pedro River.

The latest lawsuit, filed Thursday, seeks a court order for the Arizona Department of Water Resources to review and, lawsuit backers hope, revoke a decade-old ADWR decision finding an adequate, 100-year water supply exists for the 6,950-home Tribute development in Sierra Vista.

That decision legally cleared the way for the project’s construction, although it has not gotten off the ground since then. Its developer, Castle and Cooke, announced last fall it was pulling out of the project although a company executive and a top Sierra Vista official have been quoted in other media since then as saying they hope to find another developer.

On Friday, however, Adam Curtis, a Sierra Vista spokesman, told the Star that while the city keeps in touch with Castle & Cooke on Tribute’s status, the city is not directly involved in any negotiations or efforts to market that property to a new developer.

Environmentalists have long asserted that a project of that scale could be a death knell for the San Pedro. It already carries less water than it used to due to continued overpumping of the aquifer, although the total annual overdraft is less than it used to be.

The lawsuit alleges that ADWR and agency Director Tom Buschatzke, have failed the agency’s “mandatory duty” to review that decision. The suit also says Gov. Katie Hobbs, who appoints agency directors such as Buschatzke, has failed to carry out her “constitutional duty to ensure that the director faithfully fulfills his mandatory duties” under state groundwater law.

The suit is an effort by the environmentalists plaintiffs to put a nearly year-old court decision into effect on the ground. That decision for the first time quantified a federal water right for the river, ending or at least climaxing an arduous, decades long legal dispute over how many water rights are owned by the U.S. Bureau of Land Management, which controls the 37-mile-long San Pedro Riparian National Conservation Area.

The Maricopa County Superior Court ruling spelled out how much river water needs to be protected to carry out the goals of a 1988 law that created the national conservation area. Because no quantified federal water right had existed before, ADWR officials and the State Supreme Court cited that fact in first designating and then upholding a finding that Tribute’s developer has an adequate, 100-year water supply.

Now, the activist leading the charge for this suit, Robin Silver, wants to employ that ruling to get the state to revoke its water adequacy finding.

“If the director determines that basically they have less water than required for a 100-year supply, he has responsibility for enforcing the law,” said Silver, a founder and board member of the Tucson-based Center for Biological Diversity.

“You have a mandatory duty to protect, not just groundwater but also consumers” who would be buying houses and would want to be assured of having enough water for them, he added.

Hobbs also has a responsibility to enforce state laws, and “the law doesn’t allow people who serve at her pleasure to disobey the groundwater law, consumer protection law and the public trust,” he said.

Also filing the lawsuit were the center itself and an activist group calling itself the San Pedro 100.

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“ADWR will not be commenting on pending litigation, “ said Doug MacEachern, an ADWR spokesman.

In a statement to the Star Friday morning, Hobbs’ spokesman Christian Slater said, “The Governor’s Office has received the filing and is closely reviewing it.

“Since taking office, Governor Hobbs has been committed to championing a resilient water future for Arizona and is actively monitoring the San Pedro Basin. The Governor has pushed for policy reforms across all aspects of water management, including ambitious proposals to protect the water supplies in rural communities that are facing groundwater depletion, and to create pathways for water providers in urbanizing areas to transition to more sustainable, robust water supplies,” Slater said.

“Making sure we’re using the right tools to protect our water future is and will continue to be a top priority.”

Sierra Vista officials don’t have a comment on the new lawsuit “at this time,” city spokesman Adam Curtis said.

The earlier suit, filed in late June, is broader in nature. It seeks to compel ADWR to begin a formal process to decide whether to create a state-run Active Management Area to regulate and ultimately limit if not reduce groundwater pumping in the Upper San Pedro Basin including the Sierra Vista area.

ADWR and the governor are seeking to dismiss that suit, saying the lawsuit’s allegations have no legal basis and there’s no mandatory duty for them to take on the contentious Active Management Area issue. Hobbs asked to be withdrawn from that case entirely, saying “she has no business in this lawsuit.”

But the new suit could be just as sweeping in the long term, if it succeeds, by forcing review of ADWR’s adequate supply finding for Tribute. That could set a precedent enabling if not requiring the agency to deny assured supply findings for future development in that area, choking off development in that area near the river.

Cochise County requires that all new subdivisions there prove they have an adequate water supply. It’s one of only two rural Arizona counties with that requirement, although the state has a very similar requirement for new subdivisions in the urbanized Tucson, Phoenix, Pinal County and Prescott areas.

The 2013 state decision finding water adequacy for Tribute authorized it to pump 4,870 acre-feet a year from its site about 5 miles west of the river. That’s the same as the river’s base flow, the amount that flows during the driest time of the year, the lawsuit said.

During the Arizona Supreme Court case over the Tribute development, ADWR said once federal reserved water rights are quantified, if the project’s pumping will impinge on these rights, the state agency has an obligation to consider that in determining legal availability of water for 100 years, the lawsuit said.

And the Supreme Court ruling on the case, in 2018, held that “the statutory scheme explicitly contemplates that a change in circumstances may result in the revocation of an adequate water supply designation,” the new lawsuit said.

But today, groundwater levels at two of nine monitoring wells have dropped below levels that the 2023 Superior Court ruling held must be protected, the lawsuit said. Two other monitoring wells have dropped to points just above minimum levels set by the 2023 court ruling, the lawsuit said.