PHOENIX (CN) — For the third time in three decades, the federal government will be forced to reassess the biological impact of pumping groundwater to serve a military fort in southern Arizona.
A Ninth Circuit ruled Monday that the U.S. Fish and Wildlife Service and the U.S. Army “provided little evidence and relied mostly on speculation” in analyzing how much water it will save while pumping from the San Pedro River basin to Fort Huachuca, 13 miles outside Sierra Vista.
The panel ordered the Army and Fish and Wildlife to reevaluate their water savings analysis and issue a new biological opinion on the impact of groundwater pumping in the San Pedro River watershed.
"This decision is great news for the San Pedro and the plants and animals that rely on a flowing river," said Sandy Bahr, Director of the Sierra Club's Grand Canyon Chapter. "The San Pedro River is one of the most important rivers in Arizona, providing habitat for a diversity of species as well as helping to sustain generations of people."
The Sierra Club is one of three plaintiffs in the lawsuit, alongside the Maricopa Audubon Society and the Center for Biological Diversity.
In response to a request for comment, Center for Biological Diversity director Robin Silver noted that four biological opinions over the same groundwater pumping plan have now been rejected by courts.
The San Pedro, the last undammed, free flowing river in the Southwest, is home to at least four endangered species. The fort draws more groundwater from the San Pedro watershed than anything else.
To pump groundwater, the government must produce a biological opinion in compliance with the Endangered Species Act to assess the effects of the action on any endangered species in the area. The Center for Biological Diversity has successfully sued Fish and Wildlife twice over “arbitrary and capricious” approvals of Fort Huachuca’s groundwater pumping, once in 2002 and again in 2011. Federal judges in Arizona ruled in both cases that Fish and Wildlife relied on unspecific and insufficient promises of mitigation by the military base.
The center sued again in 2020, challenging a 2014 biological opinion in which Fish and Wildlife promised not to allow irrigation on a nearby area of land to compensate for water pumped out of the river. The center pointed out that the land in question, called the preserve petrified forest, hasn’t been irrigated since 2006, and argued that any potential water saving from not allowing irrigation would be purely hypothetical
A panel of three Ninth Circuit judges concurred in a ruling written by U.S. Circuit Judge Kenneth Lee, a Donald Trump appointee.
“Even though the land at issue in the (preserve petrified forest) easement has remained largely dormant since 2005, the (biological opinion) assumed that, but for the easement, someone would have resumed agricultural irrigation on 480 acres of the land beginning on Jan. 1, 2014,” Lee wrote in the ruling. “Thus, the (biological opinion) credited the easement with 2,588 acre-feet per year of water savings, turning the fort’s groundwater deficit into a surplus from 2014 onward.”
To receive credit for a water easement to offset use, the government must show in its biological opinion that benefits from water conservation effects are “reasonably likely” to occur.
Fish and Wildlife argued that it’s responsible for proving only that conservation measures are reasonably likely to occur, not conservation effects. In that case, outlawing irrigation on the easement would count as a conservation effort, despite it making no material difference in water used.
The panel rejected that logic. Because there was no evidence at the time the opinion was issued, that irrigation on the easement was likely to occur, there would be nothing for Fish and Wildlife to mitigate, so no mitigation effects would result.
The center also asked that Fish and Wildlife revisit its decision that groundwater pumping won’t jeopardize the endangered Mexican garter snake. The panel declined the request.
If the Babocomari River, a tributary of the San Pedro, dries up, the center says the snake population could be irreparably harmed.
Attorneys for the center argued in the May appeal hearing that the snakes will travel only up 600 feet from a water source, and wouldn’t be able to travel the up to 10 kilometers required to move from the Babocomari River watershed to other flowing water.
Fish and Wildlife countered that 600 feet is the distance snakes will travel laterally from a water source — not how long they can travel along a body of water.
The panel agreed with the lower court, which found that Fish and Wildlife complied with the law in making its finding regarding the snake.
“The decision of what is the best measurement to support a conclusion is typically left up to the service,” Lee wrote. “For our purposes, that is enough to maintain its jeopardy determination.”
The decision leaves it unclear whether the snakes would survive if the entire Babocomari were to run dry, but the panel indicated that it wouldn’t matter to the decision.
“Because the population of garter snakes in that area is already low, any decreased base flows would not affect enough garter snakes to tip the species into jeopardy,” Lee wrote. “That is a rational and appropriate conclusion that does not warrant a remand.”
Fish and Wildlife and the Justice Department both declined to comment. The Army hasn't replied to a request.
The panel was rounded out by U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, and U.S. Circuit Judge Daniel Collins, a Trump appointee.
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