Arizona's efforts to regulate rural groundwater hit big snag as farmers drop out

Two key members of the Governor’s Water Policy Council have quit, potentially threatening the chances of any action to deal with a depleting water supply in rural Arizona.

Stefanie Smallhouse, president of the Arizona Farm Bureau, said she can’t remain on a council that’s pushing ahead to regulate agricultural use in a way that could override the interests of farmers who have been there for generations.

Most notably, Smallhouse said the council majority has rejected what she calls key principles for ensuring farmers and rural residents have a voice in how local water conservation districts are formed and governed.

Instead of requiring the consent of area residents who would get to vote on these issues, she said the council appears to be giving the key authority to the Arizona Department of Water Resources. That would hand Director Tom Buschatzke final say over creating rural equivalents of the “active management areas” that now exist in more urban parts of the state, complete with restrictive rules.

State Sen. Sine Kerr, R-Buckeye, another council member and a dairy farmer, is blunt about her reasons for quitting.

“The Governor’s Water Policy Council is nothing more than a forum to rubber stamp the progressive environmental goals of special interest groups,” Kerr said in a prepared statement. “The radical agenda being pushed has the potential to damage our economy and kill the livelihoods of our farmers and ranchers.”

In her resignation letter to Democratic Gov. Katie Hobbs, Kerr said the 38-member panel, with only two representatives from agriculture, appears headed to recommending creation of “local groundwater stewardship areas,” something she said is “California-style regulatory overreach.”

“Disservice,” gov’s office says

Hobbs’ press aide Christian Slater said Smallhouse and Kerr “are doing a disservice to rural farmers and depriving them of a voice at the table.”

The resignations will not stop the work of the council, which is supposed to make recommendations for changes in state law to the Legislature. But the withdrawal of the Arizona Farm Bureau and Kerr could make it difficult to get a majority of lawmakers to agree on what the remaining panel members recommend.

Failure to get legislative consensus, though, does not mean rural groundwater withdrawal will be able to continue without regulation.

Attorney General Kris Mayes, a Democrat, has argued that the Arizona Department of Water Resources is already required to determine if there should be new “active management areas” where legal restrictions are imposed on the withdrawal and use of groundwater.

That raises the possibility Buschtzke could unilaterally enact pumping restrictions that could be even more comprehensive than anything the council might propose.

The purpose of the governor’s council isn’t to impose restrictions, said Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University and a member of the council.

“What the council has been discussing is how to empower local communities to opt into groundwater regulation when it’s needed,” Porter said.

But she said the fear Smallhouse and Kerr express is that whatever is enacted won’t pay sufficient attention to the water needs of agriculture.

“It was always going to be a very difficult conversation,” Porter said.

“Trying to invent something”

Porter said the council’s goal is to come up with an alternative to what is now available to manage groundwater withdrawal.

At one extreme, she said, are active management areas.

“The regulation of active management areas is really extensive and complex,” she said, with across-the-board conservation measures that are tightened every 10 years.

At the other end are “irrigation non-expansion areas” of INAs. Porter said they come in two forms.

One prohibits no new irrigation using groundwater. Another includes only metering and reporting of groundwater use.

“What this committee is trying to do is come up with something that is a much lighter form of regulation” than the AMAs, Porter said, but with more teeth than an INA, the only other available alternative. “The committee has been trying to invent something in between that is more adapted to the needs of a particular community and their particular challenges.”

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It would include input from various interests in each community, she said.

Who should decide?

It is that question of “input” that concerns Smallhouse, who raises cattle in Redington in rural Pima County and also grows forage crops.

The majority of the council has said the process of setting up a regulatory framework could be initiated either by resolution of a county’s Board of Supervisors or a petition by a percentage of area registered voters. Smallhouse and Kerr, however, want the only option to be a petition signed by a majority of residents or a majority of groundwater users.

The majority of council members would give Buschatzke or his successors the final authority to set up the district, Smallhouse said.

She said that is not acceptable. She said only a majority election of those affected — meaning those living in the groundwater basin to be regulated — should be able to impose a new layer of government.

“The committee will not hear it,” Smallhouse said.

Smallhouse said the farmers do want a role.

“We think generationally,” she said. “And so we want to do something. And we have a handful of principles, things we just have to have in order to make this work in an area where this is our only source of water,” unlike other areas of the state that have options such as water from the Colorado River.

The top principle is to have a local election, she said.

“Everybody badmouths that, for whatever reason,” she said, and the council moves on.

“And so at some point, as a participant, I have to ask myself, ‘Am I getting anything accomplished for the people that I’m here for?’ “ Smallhouse said. “Or am I just going to be a rubber stamp on a product.”

Slater defended the council’s work and took a swat at Smallhouse and Kerr.

“By refusing to work with diverse stakeholders at the table, the exiting members are doing a disservice to rural farmers and depriving them of a voice at the table while alternatives to AMAs and INAs are being considered,” the governor’s spokesman said.

Hurdle created

But Slater acknowledged the resignations do create a hurdle.

“The resignations ... make it more likely that state leaders charged with protecting our water future will be left without alternatives to implementing AMAs and INAs,” he said.

Smallhouse and Kerr are not the only ones with concerns where the council is headed.

“The agenda was obvious from the beginning,” said state Rep. Gail Griffin, R-Hereford, also a council member. “Most of the members were not interested in the natural resources industries, our rural communities and the people we represent.”

Griffin told Capitol Media Services on Friday she doesn’t intend to quit but that she is “feeling the same frustration” that those representing cities on the panel `want to control everyone.”

Governing aside, Smallhouse said there are other issues, including whether there will be “certificated water rights.”

What that means is that a farmer has the right to continue using the water they were using before, is authorized to transfer it to somewhere else in the same basin or to get credit for trying to create a market for a crop that uses less water, she said.

What is being proposed amounts to a use-it-or-lose-it system, Smallhouse said.

“So where is the incentive for a farmer to take that risk?” she asked. Without incentives, she said, “it’s always in the farmer’s interest to keep doing what he’s doing,” even if it means sticking with the more water-intensive crop rather than lose the water right.