(CN) – A proposed desert housing development opponents fear will drain the last free-flowing river in southern Arizona can move forward, as the Arizona Supreme Court ruled Thursday that the developer has sufficiently proven it can provide a long-term water supply.
The nearly 7,000-home Tribute Master Planned Community development is set to be built in Sierra Vista, about five miles from the San Pedro River. Water for the development will be provided by the Pueblo Del Sol Water Company, which got its permit from the Arizona Department of Water Resources in 2013.
But environmentalists and the federal Bureau of Land Management sought to block construction, claiming groundwater pumping will dry up the river and inevitably interfere with congressionally recognized rights for the nearby San Pedro Riparian National Conservation Area, a 36-square-mile conservation area that is home to 100 species of birds.
Arizona law requires that for the Arizona Department of Water Resources to approve a housing development, it must ensure that it will have an adequate water supply for 100 years. The law dates back to 1970 and is meant to protect land buyers from “unscrupulous” developers who would sell subdivided property without an adequate water source.
Siding with the developer, the high court found the water resources department doesn’t need to account for federal reserved water rights in its analysis of whether water will be “continuously, legally, and physically available” for those years.
The statute doesn’t define what “legally available” means and is silent on the issue of unquantified federal reserved water rights, Justice John Lopez wrote for the majority. He said the Legislature left that up to the water resources department to determine.
“If the Legislature intended to require ADWR to consider unquantified federal reserved water rights under its legal availability analysis, it failed to do so in § 45-108. The Legislature, not this court, may impose such a requirement,” he wrote.
Lopez acknowledged the potential problem, however, if developers build a project without legal access to water. But “whether the adequate water supply designation process should go further in protecting consumers is a matter for the Legislature,” he wrote.
In a sharply worded dissent, Chief Justice Scott Bales said, “Essentially, the majority would allow the Arizona Department of Water Resources to ignore the legal inadequacy of a proposed water supply until the problem becomes a reality. This interpretation defeats the adequate water supply’s manifest purpose to proactively protect consumers in Arizona before they purchase property.’’
He added the water resources department is ignoring the conservation area’s senior water rights, in violation of the law.
“ADWR cannot fulfill its delegated responsibility without considering the [San Pedro Riparian National Conservation Area’s] federal reserved water rights here,” he wrote.
He noted the majority’s interpretation of the law also imperils consumers because they could be buying property without legally available water.
“The majority prioritizes the interests of subdivision developers over those of homeowners, observing that the ‘stakes of this speculative process would be exceedingly high, given that a finding of inadequate water supply precludes development.’ But the potential harm suffered by homeowners would be even higher if their property is one day rendered almost worthless due to an inadequate water supply,” Bales wrote, noting that a trial to define the conservation area’s water rights is set for January 2019.
In a separate dissent, Justice Clint Bolick slammed the majority’s reliance on the prior-construction canon, which holds that when a term is undefined, the Legislature defers to an agency’s interpretation. In this case, he noted, the Legislature never clearly defined the term “legally available.”
Bolick criticized the majority’s seemingly illogical adherence to the water resources department’s interpretation.
“As a threshold question, we should ask how far this principle logically extends. For instance, if the agency had issued a pre-existing rule saying the director should determine legal availability by eating a jelly sandwich, surely we would not apply that definition even if the Legislature subsequently adopted the legal availability terminology without defining it,” he wrote.
Earthjustice, who represents the two environmentalist plaintiffs, did not return a phone call seeking comment Thursday. A Bureau of Land Management representative said the agency is reviewing the opinion to determine the next steps.