Rural AZ Can Restrict Growth if Water Supplies Inadequate

Some view the new state law enabling Arizona rural communities to restrict development if adequate water supplies are not available as a mixed success. It is true that rural communities now have a tool to better manage and protect their water supplies, but to apply that tool to block development requires the unanimous assent of the Board of Supervisors. A single nay would scuttle a restriction.
Nevertheless the bill is a breakthrough in finally addressing a concern that many have argued needed urgent attention: rural water management. The 1980 Groundwater Management Act enabled other more populated areas of the state, those within Active Management Areas, to link growth with the availability of water supplies.

A lingering issue, however, has been water management in rural areas of the state. When the GMA was passed rural areas generally felt confident about their water supplies. As such areas grew, attracting a greater number of residents, many rural areas began facing the same threat as AMA communities: an overdraft of groundwater supplies that threatened present water users, future development and the flow of rivers and steams.

Meanwhile in such areas a person could withdraw groundwater for a reasonable and beneficial use. No restrictions existed to drilling new wells, with no limitations on new uses of groundwater and no enforceable requirements to meter wells or conserve water. A developer proposing a subdivision had to demonstrate to the Arizona Department of Water Resources that an adequate water supply was available. An ADWR determination that the water supply was in fact inadequate would not deter the developer from selling lots in the subdivision. Whether city and county governments have authority to deny a subdivision because of an inadequate water supplies was uncertain.

It was generally agreed, however, that managing water in areas outside AMAs required a distinctive approach, not the centralized, broadly applied rulemaking of the GMA. The new legislation grants authority to elected officials in such areas to enact their own laws regarding development and available water supplies.

U.S. Supreme Court Rules CWA Trumps ESA in Arizona Case

Officials at the Arizona Department of Environmental Quality must have felt a sense of relief when the Supreme Court recently ruled that the Clean Water Act trumps the Endangered Species Act. In its 5-4 decision in National Association of Homebuilders v. Defenders of Wildlife the court determined that U.S. Environmental Protection Agency did not break the law when it allowed Arizona primacy to administer its own stormwater discharge program. Developers often must obtain such permits before they begin construction.

The immediate effect of this decision is that Arizona may continue to issue wastewater discharge permits under the CWA. The broader issue is that the ESA does not trump the CWA when EPA grants primacy to a state to issue water-pollution permits.

Environmentalists had sued EPA arguing that the agency did not consider the effect the transfer decision might have on endangered species when it granted primacy to ADEQ. They said the state, when taking on what was previously a federal responsibility, does not have the same ESA enforcement authority and responsibilities as EPA.

The Supreme Court decision reverses a previous appellate court ruling that agreed with environmental interests stating, “that the EPA did have the authority to consider jeopardy to listed species in making the transfer decision, and erred in determining otherwise. For that reason among others, the EPA’s decision was arbitrary and capricious.”

Justice Samuel Alito writing for the majority stated that the “must” in the CWA overrides ESA and that the ESA’s consultation requirement should apply only to “discretionary” actions.
Writing for the minority, Justice John Paul Stevens stated that limiting ESA to discretionary actions is inconsistent with the text and the history of the law. He wrote that the court’s response to the “problem of conflicting ‘shalls’” raised by the case should have been to direct federal officials to find the means of complying with both laws.

If read narrowly the case could be said to apply only to water permits in question in the case. Interpreted broadly the ruling could be used to justify additional ESA exemptions in other situations. The critical question is: Does the ruling open the gates for further ESA challenges?

In response to the ruling Steve Owen, ADEQ director, issued a statement that said: “From the beginning we have operated our state program in accordance with the Clean Water Act. Our state program provides adequate protection for endangered species, and we have always been confident that our program would be upheld in court.”

This was considered a landmark case with national implications and one of the most significant ESA cases to come before the court in a decade.

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