A federal judge has once again tossed out an agency’s analysis of how groundwater pumping caused by Fort Huachuca’s presence will affect the San Pedro River and four imperiled species living in, or along it.
U.S. Senior District Judge Raner Collins’ ruling marked the third time since the early 2000s that a federal judge has overturned a biological opinion written by the U.S. Fish and Wildlife Service on the fort’s impact on the river. The rulings stemmed from lawsuits filed against the service and the fort by the Tucson-based Center for Biological Diversity and other parties, including the Maricopa Audubon Society.
In addition, the wildlife service agreed to redo a fourth biological opinion in 2006 in an out-of-court settlement stemming from another lawsuit by the center.
In Collins’ ruling last Thursday, he said the most recent biological opinion had overestimated how much groundwater pumping the fort would save by buying a conservation easement on former farmland near Hereford. The purchase of the easement is aimed at ensuring that irrigation and groundwater pumping would never resume on that parcel.
The calculation of groundwater savings was “arbitrary and capricious,” Collins wrote.
Collins ruled against the lawsuit on several other grounds, however, and the center and the Audubon group indicated they intend to appeal one of his other findings.
That finding was that it was legally correct for the fort to claim formal credit for groundwater savings for buying out irrigation rights to that parcel and a second one that had not been used for irrigation for many years. The center and the Audubon Society had argued that the credits shouldn’t have been allowed.
“This Court ruling extends DOD/Fort Huachuca’s record of success in trying to defend its habitual violations of law to zero-for-four Biological Opinions alone over the last two decades,” said Robin Silver, the center’s co-founder and a board member.
In addition, the Army post and service lost another biological opinion case after the center sued it to force production of such an opinion, Silver said.
But Angie Camara, a fort spokeswoman, said Huachuca officials are pleased the judge ruled it could use the conservation easements to mitigate its other water uses and that Collins upheld the fort’s groundwater modeling analysis as sound.
“This ruling reaffirms the fort’s dedicated stewardship of our natural resources and our broad partnerships with stakeholders in the Upper San Pedro Basin. Consistent with the judge’s ruling, Fort Huachuca is already preparing a biological assessment and will reinitiate consultation with the U.S. Fish and Wildlife Service once that is complete,” Camara said.
Al Burrus, a Wildlife Service spokesman, said only, "The Service is currently reviewing this ruling."
The latest ruling follows decades of debate and litigation pitting the center and other environmental groups against the Wildlife Service and fort over the impact the fort has on the river.
The center and other environmentalists, citing studies showing ongoing declines or future declines in water flows, have said the fort’s activities are a key factor.
While the fort has over the years dramatically reduced its on-post pumping, environmentalists have targeted groundwater pumping people who live off-post as well as businesses operating in the area that are doing so only because the fort exists. The center hopes to force Fort Huachuca to downsize its activities and employment to reduce its environmental impact.
“The pumping attributable to the fort is jeopardizing the river, drying up the river,” Silver said. “That’s an undeniable fact.”
Officials for the fort and service have, however, tried to show that even off-post pumping that is attributable to the fort was not causing net declines in river flows.
One step the fort took to try mitigate its impact was the since-contested purchase of formerly irrigated land near Hereford. The parcel is known as the Preserve Petrified Forest. The fort and wildlife service said the purchase saved about 2,558 acre-feet of water — enough to serve around 10,000 typical Tucson homes.
The two federal agencies had argued that the property still had three workable irrigation wells and could someday be used for irrigation, even though its agricultural center pivots were in disrepair, and the land had been listed for sale for residential purposes.
The center and the Audubon group argued the fort was “claiming water credit for hypothetical future water use even though such future use does nothing to remedy the river’s immediate predicament.”
But the agencies concluded — and the judge agreed — that the land had not previously been permanently retired from irrigation.
But on the actual groundwater savings to be achieved by that calculation, the agencies erred by not taking into account that some of the pumped groundwater would ultimately have filtered back into the aquifer, Collins ruled. Scientists call such activity by pumped water “return flows.”
To give the fort credit for all the pumped water “would be like asking for full payment for a roof repair, knowing that up to 40% of the roof still leaks. It amounts to an undeserved benefit,” Collins wrote.
But as for Collins’ ruling that the fort could claim groundwater savings at all due to that purchase, Silver said it ignored another judge’s ruling in one of the earlier San Pedro lawsuits.
That ruling found that to show the fort’s pumping would not jeopardize the existence of imperiled species, “You have to have some quantifiable contemporaneous mitigation,” said Silver. That means the mitigation must have immediate, or at least short-term, impacts.
“Maybe it’s quantifiable, but it’s definitely not contemporaneous. It’s sometime in the future, when the jeopardy is now,” Silver said.
