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Michael Dauphinais: Following is an azpm original production.

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Christopher Conover: Welcome to The Buzz. I'm Christopher Conover this week examining Arizona's 100 year water rule. For most of its existence there has not been a lot of consideration by the general public of Arizona's rule that requires housing developers to show that a new subdivision has access to 100 years worth of water. That all began to change last year, though, when new housing developments in the Phoenix area were put on hold while their supply was re examined. Now the topic is hitting southern Arizona as the state re examines the adequate supply designation given to a water company that covers much of the developable land in Sierra Vista. So how did this 100 year rule come into being? To start today's show we ask one of its authors. Kathy Ferris is now a senior research fellow at the Kyle Center for Water Policy at Arizona State University, but more than four decades ago, she was one of the authors of Arizona's 1980 water law that set that policy in place in

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Kathy Ferris: the days when we were drafting the 1980 groundwater management act, there were some of us, myself included, who wanted to extend what is called the adequate water supply program, which was an existing law, and make it a permanent requirement in Our active management areas. So in adequate water supply, the developer had to show a 100 years of water, but he wasn't prevented from selling lots in the subdivision if he was unable to demonstrate 100 years. So the 100 years was just an arbitrary number that was picked decades ago when that law was enacted and we just continued it, we thought, well, 100 sounds good. It's unique in the United States. I don't think there is another state in this country that has this requirement. 

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Christopher Conover: When you say it's unique in the US. Is the the water supply question, unique, or is the 100 years unique? Or both? 

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Kathy Ferris: Both the idea that you would require developers to demonstrate a 100 year water supply, I think we're the only state in the country that does that.

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Christopher Conover: What was the reaction when this rolled out, I could see some developers saying, okay, that makes sense, and others say, whoa, whoa, whoa, wait a minute, that's 100 years. Is not my problem. 

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Kathy Ferris: Really, there wasn't a lot of reaction. And the reason was that the groundwater management act, ultimately was negotiated by the cities, the mining companies and the farms. And developers were not in the room, and really it was the cities and myself who were pushing for the assured water supply requirement. And the farmers liked it. They liked it because they said, if we're going to be limited in bringing new land into cultivation and active management areas. Shouldn't there also be a prohibition on new development that doesn't have an assured water supply? So initially, the reaction was pretty muted, but over time, it became a real hot button.

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Christopher Conover: I bet it did. Did the farmers ever say, I could see them saying because so many farmers now have have sold their farms, and, as some people say, are now growing houses, that it helped them with those future plans, because farmers know how much water they have, it's integral to their business. So did they talk about any of their future in that sense also? 

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Kathy Ferris: Well, I think there was a feeling at the time that this would be good for agriculture, because if they sold the land, they were selling the water supply to go with those houses. But in reality, a great deal of growth since 1993 has taken place on raw desert land, and that's because the legislature amended the laws then and said, Well, we're going to allow you to use groundwater as an assured water supply if you join a district that is required to replenish the groundwater you pump. And so that opened up vast amounts of Native Land, land that had never seen any water use to developments, and probably in the last 30 years, that's where most of these subdivisions have developed, unless they're in a city or a town, such as Tucson, for example, that has been designated by the department as having an assured water supply. So most of our big cities, they have all demonstrated to the department that they have a 100 year water supply looking out for 10 to 15 years. And so if you're developing land that is going to be served by one of those providers, you don't have to take on the job of showing an assured water supply

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Christopher Conover:  for a developer, does that 100 year math that they have to do to come up with the assured water supply? Does it take into account what they're building, townhouses that are Xeroscaped, versus a country club community that involves lawns and golf courses and things like that.

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Kathy Ferris:  It absolutely does. So part of the process when they apply is they have to, you know, give the department plat maps and tell the department what kind of housing they're building, what kind of amenities there will be. But yes, they have to do that, and then there are various calculations that they do, or the department does, to calculate the water use based on what they plan to do in that subdivision.

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Christopher Conover:  You and Sarah Porter were co authors on a 2019 report that looked at the intended and unintended consequences of this rule. Can you tell our listeners a little bit about the unintended side?

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Kathy Ferris: So the report we wrote is on the Kyle Center website, and it's called the elusive concept of an assured water supply, and it explores the role of the central Arizona groundwater replenishment district in an assured water supply. And that's the district I talked about that the legislature created in 1993 and if you enroll your subdivision in the district and you pay for replenishment charges, then you're allowed to pump groundwater, and the replenishment district has the responsibility to acquire renewable water supplies, to replenish the groundwater you pumped. Well. Fast forward to, I guess it was 2019, when we wrote the report. That process, as I said, before that mechanism for developing subdivisions became the go to way to get the water supply you needed and get an assured water supply for your subdivision, and it's created a big burden for this district, because they are competing with many other water users for renewable supplies that they can use to replenish the groundwater pumped. And those supplies are becoming less and less because we see we have shortages on the Colorado River. Initially, it was thought that they could just use excess Colorado river water, and they thought they could do that until 2045 Well, fast forward. They stopped doing that about in about 2014. So the projections for how much water could be acquired and replenished were awfully rosy, and they're going to struggle as time goes on to find the water supplies that are necessary for replenishment, and then, in the meantime, they aren't required necessarily, to replenish the water, the groundwater where it's pumped. So you can be pumping in one location and have the replenishment take place in another location. Well, our aquifers are not big bathtubs. You could be creating a situation where the groundwater is pumped and it goes dry and the replenishment takes place somewhere else, but it doesn't help the folks that relied on that groundwater

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Christopher Conover: That was Kathy Ferris of the Kyl Center for Water Policy. You're listening to the buzz after the break, we hear about how this renewed fight over water supply could affect Cochise County's largest city. Stay with us,

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Christopher Conover: Welcome back to The Buzz. I'm Christopher Conover. We're looking at the state's rule that requires new housing subdivisions have access to a 100 year water supply. The bulk of Sierra Vista's developable land is in a planned housing development known as tribute. The project has been slowly built out over years, though its owner, Castle and Cooke, announced last year it would stop work due to market conditions. That stoppage may be prolonged thanks to a recent decision by the Arizona Department of Water Resources. Sources to review the adequate water supply designation for Pueblo del Sol, the water district that serves the subdivision. We asked ADWR and Castle and Cooke for interviews to clarify the review, but neither returned our messages. The review came after the environmental nonprofit, the Center for Biological Diversity, sent letters saying a recent court decision about the San Pedro River makes the adequate water designation for Pueblo del Sol and others invalid. We spoke with the center's Robin Silver about those letters and the developments that have come along since they were sent.

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Robin Silver: The San Pedro is part of the Colorado River Basin, because the San Pedro joins the Gila, which joins the Colorado. So, as does the Santa Cruz, and so the entire basin is in trouble. It's in trouble for different reasons, besides climate change, because we have a prolonged drought that's now, and now we're dealing with climate change. Tucson is a good example. They suck dry the Santa Cruz with their groundwater pumping. Then they bet their future on the Colorado River. They're going to have to reduce because if they go back on groundwater, you can't just keep sucking groundwater, because the quality starts to diminish the deeper you go. With respect to the San Pedro River itself. I mean, please note, the San Pedro River is the last surviving free flowing undammed desert river in the entire Southwest. If you look at the rivers, if you're a neotropical song bird or you're just thirsty, the Rio Grande is dead. It's struggling. Then you start moving. The Gila is dead. The Santa Cruz is dead. The Colorado River is dead. The Verde still has some life in it. In the middle, you know, it's at risk from press gets pumping. It's also doesn't have the value, in terms of international value, where millions of neotropical songbirds are totally dependent on the San Pedro because it's the last bus stop during their migration. So it's a big deal beyond just the people in Sierra Vista are bummed out because they think, you know, it's all about them. Well, you know, they don't own the San Pedro. The San Pedro belongs to all of us

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Christopher Conover: when we talk about the river, how much of an issue, because the headwaters are not in Cochise County, the headwaters are in Mexico. So how much, when we're talking about 100 year water supply for something in Cochise County, or anywhere else in that basin, is it out of the state's control, Cochise County's control, the individual homeowners control?

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Robin Silver: There's very little water comes from Mexico to the portion of the San Pedro in the United States. And so they're revising some of the numbers now. Emily Bregel did a story on it looking in there, because their wells are all going dry, mainly because of the Cananea mine. The river itself has always the hydrology of the river is, is that the river actually a good part of it starts on the west side of the Huachuca Mountains and flows south and then gathers water also from the mountains that are right next to Cananea, but most of that water doesn't cross the border, and not only that, it's been getting sucked dry for decades and decades, because there's a well field that the mine has right along the border. So the areas that are watered in the US that water is coming from the Huachuca Mountains to a lesser degree, the Mule Mountains, which are Bisbee, and then there's gaining and losing reaches as it flows all the way to Winkelman. So some of the areas have always been historically dry, and others are wetted. The problem in the United States is not a problem with Mexico. The problem the United States is a problem with groundwater pumping in the United States, it's not been sustainable. The problem we have now is their deficit is about 2 million acre feet. The only thing that's going to work is is that we need to drastically cut back on the groundwater pumping, which means downsizing of Fort Huachuca because they're the number one groundwater pumper in the area. Again, that's not new news. The Pentagon has had contingency plans for downsizing Fort Huachuca for decades,

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Christopher Conover: And I would assume that would then trickle into downsizing Sierra Vista, since so much of the city's economy is tied to the fort. If there are fewer activities at the fort, there's probably less at Sierra Vista. So even more water saving would result.

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Robin Silver: I mean, Sierra Vista is for Huachuca. There's no difference between the two of them. If Fort Huachuca weren't there, Sierra Vista would be a tiny, little town. Because there's nothing else there, except maybe climate and tourism. But their entire economy is based on the military.

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Christopher Conover: Is it a short term or a long term solution, something that can be done tomorrow, or is this something that we have to look at long term? And as you said, with a 2 million acre foot deficit, every acre foot helps. Every drop saved is a drop saved. But is this something that can be made up over time, or it's just too big and it's never going to be made up, and people need to accept that and figure out the solution.

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Robin Silver: It's not too late. It's a long term solution that we need to implement, but in the short term, we need to do something drastic, because we're so far behind. It's no different than when you overdraw in your checking account. You can't just start over. You owe a debt, and physics is no different. However, the financial market will help correct the situation, because just like in Florida, where nobody can get flood insurance for their homes, well it's going to be the same thing in Fort Huachuca, Sierra Vista area, there's no one will be able to get, be able to get financing for anything, because who's going to invest in an economy that has no future? That's the short term solution, and that has to be addressed, and it will be addressed no matter what the Army decides to do, because the army is not going to be able to get housing for their troops, and so nor will the contractors, as more and more of the work is done by contractors, not by the enlisted personnel.

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Christopher Conover: Is that why you all decided to start sending the letters to the mortgage companies and the realtors and all of that just kind of some people would say that's a new tactic, going the economic route when dealing with water issues, instead of the normal court routes and things like that.

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Robin Silver: Well, it's not that it's a new that it's a new strategy. It's just that what we needed to wait for was the finalization of the adjudication lawsuit. Because what was happening is, is that there was a fine print on all the financial transactions there that no one paid paid attention to. That basically said, sometime in the future, the water here might not be adequate. Well, no one paid attention, and so it wasn't like we knew it wasn't coming, because we're in an overdraft situation. Well, now the situation's arrived, it's objective, and now the underwriters need to make a serious decision, because their job is not to protect a river. Their job is to protect investors. And investors, you know, most of them don't care about the environment, but they care about their wallet. And you know, the Fort Huachuca, Sierra Vista area is not a place to invest. It's not a place that you want to open your wallet for. And so that's happening now, and that's going to happen.

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Christopher Conover: That was the Center for Biological Diversity. Robin silver, we wrap up today's show by thinking about the city this impacts. Chuck Potucek Is the longtime city manager of Sierra Vista. Our conversation starts with the origins of the city's water concerns. 

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Chuck Potucek: There are a lot of different perceptions about water issues around the state, and each basin has its own individual, unique water issues. So you can't really lump everybody together. Ours is not an actual water supply issue. It's an issue of water usage as it relates to affecting the San Pedro River. So it's very much more a legal, regulatory type of issue. And then and the reality as to how much water usage affects the river.

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Christopher Conover: And again, just so people have, you know, a little bit of understanding setting this up, if people aren't familiar with Sierra Vista. Why is the San Pedro so important to Sierra Vista and the surrounding communities?

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Chuck Potucek: Well, we're very the community in that regard. We're actually a community that sits in between two large federal properties, one being the San Pedro River, and of course, we have Fort Huachuca to the north and west of us.

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Christopher Conover: So there's a common refrain that if a city isn't growing, the city is dying. Sierra Vista is one of those places that butts up against water issues and growth. It seems like almost the most in. At least in our area. So how has guaranteed water supply affected Sierra Vista's ability to grow well?

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Chuck Potucek: We have lived with this for a very long time, so it's something we're used to having to deal with. I think another misconception that's out there is that Sierra Vista has not historically been a very fast growing community. We're, you know, off the highway. We have no rail, being off the beaten path a little bit. You know, you have to really want to be here, or need to be here because of the Fort. So cars aren't lined up, up and down the highway, ready with anxious people to move into the community, and it's been that way pretty much the entire time I've been here. I've been here since 1986 and I've been city manager since January of 96 and it's been always a pretty slow and steady growth community over the last 10 years or so, though it's been very, very little, one to 2%. So we haven't been too affected by the 100 year water adequacy as it relates to the growth rate and having the housing available and still having areas that can develop. Where it has affected us is primarily with our largest developer, which was Castle and Cooke and the Tribute property that's been embroiled in some litigation that a lot of people are aware of, and that called for some 7000 units to be built over a period of time depending on market conditions. And that's really the largest growth area that the city has planned for the future. And then last year, Castle andCooke determined that they would pull out of the area. And as such, they're, you know, in the process of ratcheting down their operations,

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With them pulling out of the area. What does the future look like, especially as ADWR says they're going to be reevaluating that 100 year adequacy for the water district? 

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Well, obviously, there's a number of other smaller properties that have been under development here in the area. So you know that has been able to meet the demand so far. The question is, when those develop out, You know, what's the future going to be like for development here in the area? Now, that's my understanding. Pueblo del Sol Water Company, also owned by castle and cook, is the holder of the current 100 year water supply certificate. Now, in terms of how that harms Castle and Cooke to then go after the certificate again. Could it mess up a potential sale of the property to somebody else, or hold it up? Yeah, that that is something that could happen as a result of that. But I believe that Castle and Cooke is voluntarily wanting to go through a review with ADWR and then, you know, we'll just have to see what the determination is, you know. Will it, Will it be zero, no growth? You know, I don't anticipate that. You know, will it be amended to some other level of development in the future? You know, that's highly possible. So really, we're in a position of having to wait to see what happens with that. Oddly enough, because this is tied into the Gila River Adjudication and the determination by Judge brain here recently, with regards to what the federal water rights are for BLM and the river, you know that really hasn't been settled yet. That initial determination is out, but no, no decree has been issued yet, and there should be a number of appeals probably filed on that so that's going to go on for for quite a while yet as well. So I'm not sure if the threat of a suit is premature in that case or not. Obviously, 100 year water adequacy is a state issue, but obviously that could extend to a federal issue if suit is brought against BLM to enforce their rights as well in the future,

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Christopher Conover: The environmental group that logs the complaint about adequate water supply for the land in question has a number of complaints running in Cochise County, some of them near Sierra Vista. When these type of complaints come up, do you as city manager or the city get involved with talking with these environmental groups, or is that between the courts And the developer and the environmental group in the city just tries to stay out?

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Chuck Potucek: Well, generally, all they bring to the table is litigation. So there usually is no discussion, or, you know, when negotiations or anything like that. Obviously we have. We've been engaged in water issues here, or, you know, ever since I've been here, and certainly, we work with many, many different groups, federal agencies, state and local agencies, as well as nonprofits and NGOs. So we have three different major water groups that that we're a part of. So we participate in all of those efforts to help, you know, protect the river, as well as the jobs on Fort Huachuca, and we continue to do that. And then we just, you know, end up having to see where the courts rule and then adapt to whatever landscape as presented to us.

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Christopher Conover: It sounds like all of this is especially since you've been on the job since 1996 nothing new. It's just a continuation of the same issues. 

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Chuck Potucek: Yeah, nothing new. You know, really, I mean, all of this really started with, you know, the Center for Biological Diversity, using the Endangered Species Act, you know, dragging Fort Huachuca into those efforts. And of course, Fort Huachuca being a national defense asset. And of course, our largest employer, you know, we're certainly going to be very interested and involved in anything pertaining to the fort. And of course, we have the river here, and then nobody wants to see that, you know, damaged as well. So we kind of have to walk in the middle and and try and make sure that everything is satisfied on both ends.

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Christopher Conover: That was Sierra Vista city manager, Chuck Potucek, and that's The Buzz for this week.

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You can find all our episodes online at azpm.org and subscribe to our show wherever you get your podcast, just search for The Buzz. Arizona. We're also on the NPR app. Zac Ziegler is our producer, with production help from Desarae Tucker, Our music is by Enter the Haggis. I'm Christopher Conover, thanks for listening.

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