CAP is Growth Area for Tucson Lawyers

As the state and the federal government exchange lawsuits over the repayment of the Central Arizona Project, legal disputes have erupted among various Tucson interests, with CAP water use and quality the underlining issue.

Metro Water District vs. Tucson

A legal fight is brewing between Tucson Water and the Metro Water District over the purchase of CAP water. The Metro Water District was founded in 1992 when the former Metropolitan Water Co. utility was purchased from the City of Tucson for $14.6 million. The purchase agreement specified that Metro is to pay the city $2.4 million by June 1996 for 6,945 acre-feet of CAP water, with payments to begin by July 1, 1995, whether the district used the water or not. The deadline was later changed to August 1 to accommodate Metro's effort to renegotiate the deal.

Metro then filed suit August 16 against the city of Tucson claiming that its agreement to purchase CAP water is no longer valid partly because "it has already been determined through an aborted attempt to deliver treated CAP water to Tucson Water customers that the water is harmful at least to delivery systems, if not to customers themselves." The suit argues that CAP water fails to meet the quality standards of Metro or Oro Valley, a town served by the district.

Further, Metro questions the city's ability to deliver the water over time, and faults the city for failing to complete a system for conveying water to the northwest area as specified in the purchase agreement.

As a result, Metro is willing to take only 57 percent of the water since the incomplete delivery system reaches only 57 percent of the district's customers. A lower price also is requested.

Tucson vs. Metro Water District

The city responded by filing a counterclaim against the district stating its officials falsely represented that Metro would take CAP water "come hell or high water" when negotiating for the purchase of the system. As a result, the city believes its consent to sell "was obtained by fraud" and demands the return of the water system it had sold three years ago.

Further, the city's claim seeks a court order to bar Metro from implementing changes to its water system -- e.g., constructing new reservoirs -- that would complicate the system's integration back into Tucson Water's operations.

The suit states that an acceptable alternative to the above actions would be an enforced agreement that Metro purchase part of Tucson's CAP allocation, as well as help pay for Tucson's treatment plant and delivery system.

Tucson vs. CAP Plant Designers

Meanwhile Tucson is engaged in a CAP legal fight on another front. Along with suing Metro Water for refusing to take CAP water because of its alleged poor quality, the city also is suing Carollo, Black & Veatch, a joint venture of engineering firms that designed and supervised the construction of Tucson Water's CAP treatment plant.

The lawsuit filed November 8, 1994, alleges that "the plant, as designed and inspected by CBV, fails to comply with the intent of CBV's agreement with (the City) in almost every respect." The City further alleges that the contractors' negligence resulted in "substantial defects in the design and construction of the Plant."

According to city officials, however, the treatment plant's design flaws have not adversely affected the quality of water produced by the plant which, they say, met all federal and state standards. The treatment plant was shut down last October when flow through the CAP canal was temporarily halted for repair and replacement of siphons.

The city filed the lawsuit to stave off the statute of limitations, while negotiations continue with CBV to resolve the dispute.

Tucsonans vs. Tucsonans

In another action, court intervention was requested to keep an initiative off the November ballot to allow Tucson voters to decide whether to restrict the city's use of CAP water. In sum, the initiative aims to force the city to recharge its CAP allocation. At least 17,400 of the nearly 30,000 collected signatures were deemed valid, a number well over the required 10,938 signatures needed to put the initiative on the ballot.

The action was not to the liking of a coalition of 28 Tucson citizens -- 17,372 fewer citizens than signed the initiative petition -- who filed a lawsuit July 31 in an effort to overturn the initiative on technical grounds. They claim initiatives are to establish new laws, not set administrative policies. They view CAP water use as an administrative matter for city water officials to decide, not the voters.

Santa Cruz County Judge Roberto Montiel disagreed. In a September 14 ruling he said voters were not trying to dictate administrative decisions, but instead were attempting to force policymakers to set legislative policies.

The judge stated, "The advisability of the standard attempted to be imposed by the initiative is clearly questionable. However, this court does not have the authority to rule on such issues. Those are issues that should be debated by the electorate." The judge further stated that, "Courts must be careful not to place undue restrictions upon the citizens' power to enact legislation."

Opponents of the initiative pledged to appeal the ruling to the State Supreme Court.

Tucsonans vs. City of Tucson

Other Tucson citizens are pursuing a more aggressive strategy than the signing of a CAP initiative petition. Four residents have filed a $15-million claim against Tucson saying CAP water not only caused nearly $18,000 in damages to their appliances, pipes and fixtures — Tucson Water reimbursed them only $700 — the water also caused "sustained illnesses, skin rashes, lesions, blisters, scars."

The claim states that adequate study and testing of the treatment and distribution of CAP water did not occur, nor did the city heed warnings and data allegedly indicating the water "would be hazardous to the health and property of those who consumed or received it." Further, the claim states the city violated its duty to provide safe drinkable water to the public.

Attorney Barry A. Mac Ban states that if the city refuses to settle the claim, a class actions suit likely will result, involving thousands of people claiming to have suffered injury to themselves or their household properties or businesses. He says he has received numerous phone calls from people with CAP "horror stories" to relate.

As the deadline nears, the city has not yet responded to the suit. According to City Attorney Tom Berning, the city code does not contain any provisions to settle such a claim. Also, he says state law requires a claim be filed within 180 days after the harm occurred, and this claim did not meet the prescribed deadline. Most importantly, according to Berning, he was informed that CAP water met federal and state water quality standards and so the city has no legal liability for damages that occurred.