Arizona gov vetoes attempt to protect big farms from being sued over water

PHOENIX — Gov. Katie Hobbs won’t let Republican lawmakers strip away the attorney general’s right to sue owners of corporate farms whose groundwater pumping dries up their neighbors’ wells.

Nor will she allow them to erect hurdles for others who file “nuisance’’ lawsuits about the loss of groundwater.

In her veto of HB 2124 on Tuesday, Hobbs did not address the claims of Democratic Attorney General Kris Mayes that such a change in law would undermine her ability to protect property owners “where individuals may lack the resources to fight these battles.’’

Instead, Hobbs chided lawmakers who have been approving a series of changes in water laws on a piece-meal basis.

“I have consistently stated that water policy needs to be addressed in a holistic manner that provides real solutions for the challenges we face throughout the state,’’ the Democratic governor wrote. “I look forward to continuing to work with both the House and the Senate to craft a package of proposals that does exactly that.’’

Hobbs used much of the same wording in her veto of HB 2063, which would have allowed the owners of certain wells, now exempt from having to register with the Arizona Department of Water Resources, a right to withdraw up to 35 gallons per minute.

A bigger issue is the effort in HB 2124 to expand existing laws designed to protect agriculture.

Those statutes already give these operations substantial immunity from nuisance lawsuits. There also are requirements for a court to award legal fees in these cases if the litigation was not filed in good faith or it was done to harass the other party.

Rep. Austin Smith sought to add an automatic entitlement of court costs and legal fees if the lawsuit “was filed to take away or reduce the water used by the other property.’’ More to the point, the proposal by the Wittman Republican would have that occur regardless of whether the person filing the suit was acting in bad faith.

That’s just part of the concern Mayes had with the legislation.

After gaining House approval, Republican Sen. Sine Kerr, a Buckeye dairy farmer, added language stripping from existing laws the ability of the state attorney general to file any sort of nuisance lawsuit at all.

This came as Mayes said she was looking to use nuisance laws to go after farmers who use existing state laws to legally pump unlimited quantities of groundwater.

While there are legal restrictions governing pumping in some urban areas, rural agriculture is largely unregulated, with farmers who own or lease land pretty much able to withdraw what they can without limit. In fact, efforts to require farmers just to report how much they are withdrawing have failed to get legislative approval.

That has left Mayes looking for other ways to curb the practice, launching investigations into whether the activities of corporate farms are damaging their neighbors. The attorney general said she was hearing from residents “whose wells have gone dry or will in the near future thanks to mega-farms and Wall Street hedge funds who knew they could take advantage of our state.’’

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She specifically named the Saudi Farm owned by Fondomonte in La Paz County and the Riverview Dairy in Cochise County.

The ammunition Mayes has — what HB 2491 sought to take away from her — is that laws declare “nuisances’’ are any activities that improperly injure, inconvenience, annoy or cause damage to others.

In general, nuisance laws in Arizona are built on the concept that someone’s otherwise legal use of property may affect the ability of someone else to use or enjoy his her her own property.

Mayes said she has sent “dozens of investigators’’ to La Paz and Cochise counties to look at complaints of wells drying up, the cracking of home foundations, and fissures she said are threatening homes. She said she has hired a hydro geologist who could provide expert testimony that would be necessary to successfully pursue such litigation.

In a letter to Hobbs seeking a veto, Mayes said the authority of her office to file nuisance complaints on behalf of affected residents protects communities and water supply, “filling in the gap where individuals may lack the resources to fight these battles.’’

There have been other efforts to limit pumping.

The state did cancel leases it had with Fondomonte, which grew alfalfa to feed dairy cattle in the Middle East. But the company continues to farm on other private lands in Arizona.

Riverview Dairy bought more than 50,000 acres of land to farm near Willcox.

Mayes does have a backup plan if, for whatever reason, nuisance lawsuits fail to produce the desired result: To take the issue of groundwater pumping directly to voters with an initiative.

That suggestion, however, drew criticism from both Smith, who co-chairs a special House panel named to investigate Mayes, as well as Rep. Jacqueline Parker, R-Mesa, the chair of what has been dubbed the Ad Hoc Committee on Executive Oversight.

“Publicly advocating for a ballot measure raises questions about your ability to impartially perform any duties required for any future ballot measure relating to groundwater issues,’’ they wrote to Mayes.

In that letter, they also cited the financial damage that could be done to agriculture if Mayes pursues the issue of investigating — and potentially curbing — groundwater pumping.