Ruling Fuels DWR Municipal Water Conservation Debate

A recent court decision prohibits the Arizona Department of Water Resources from enforcing gallons per capita per day standards, a key strategy for regulating municipal water use. A Superior Court ruling stated that the provision of Arizona’s Groundwater Management Act’s Second Management Plan by which DWR imposes maximum GPCD requirements “is vacated and set aside because it fails to address water utilization by end users.” The judge also ordered DWR to pay plaintiff’s attorneys’ fees of $137,900.

As DWR appeals the ruling, some water utility officials view the court decision as providing a good opportunity for the state agency to rethink its municipal water conservation program. Warren Tenney, assistant to the general manager of Metro Water District says, “The department might end up spending a lot of money fighting it through the courts, or it could use this as an opportunity to work with municipal providers to improve DWR municipal conservation requirements.”

The Arizona Water Company filed suit in 1990 when DWR adopted its Second Management Plan, challenging the plan’s municipal water conservation program on several grounds. For one, AWC claimed it was improper to impose GPCD requirements on municipal providers without directly regulating their customers or end users by imposing limits on their water use.

AWC Vice President Bill Garfield says the utility objected to regulations placing the entire burden of meeting the GPCD on the water providers themselves. He says, “We have an obligation to serve our customers. We don’t have the option of serving Customer A because we believe he puts water to good use and then not serve Customer B because we say his use will put us over our GPCD requirement.”

AWC also objected to DWR’s method of establishing GPCD standards for water providers, alleging that the agency’s use of historical water use records to set standards was to the disadvantage of developing communities. AWC also objected to DWR including Central Arizona Project water within GPCD calculations.

Further, the water company claimed to be caught in a regulatory bind, in attempting to be in compliance with both DWR and Arizona Corporation Commission regulations. DWR regulations mandate limiting water use while ACC regulations require that a utility meets customers’ demand.

Although the case involved an array of possible issues, the judge’s recent ruling focused on the management plan’s failure to regulate the end user. In effect, the decision puts DWR’s enforcement of GPCD requirements on hold during the period of appeal. It may be a year before the Court of Appeals decides the case.

DWR attorney Ken Slowinski says, “If we ultimately lose the appeal we will then have to go back and make changes in the management plan.” He is unsure, however, what kind of changes would be called for. “It depends upon how significant the judge feel the management plan needs to be changed to overcome the deficiency he sees in it. It is difficult to assess that just by the wording of his order. It is a short statement about what he felt is wrong with it, and could be open to interpretation as to how far he wants to go to address water use by end users.”

Slowinski says, “The judge did not say that GPCD is illegal, just that it is defective because it does not address water utilization by end users.” He added that DWR believes the management plan is legal and that the decision will be reversed.

The case strikes a chord with a number of utility officials who are dissatisfied with the GPCD standard, and they question the wisdom of pursuing a lengthy and expensive court case. They say DWR took a different tack when it had a dispute with the agricultural sector over its base conservation program. After the dispute continued for several years and in the face of probable legal action, DWR worked out a compromise with agricultural interests that resolved many of the problems. Some municipal utility officials say such a strategy is appropriate in working out municipal conservation requirements.

They further claim that DWR has been remiss in not already having seriously considered municipal water conservation options. They say such opportunities existed during the course of the ongoing legal proceedings. They also say the Governor’s Water Management Commission did not adequately consider the issue of municipal water conservation when it reviewed the working of the GMA.

Tenney says, “Water conservation has evolved in Arizona in the last 22 years since the passage of the Groundwater Management Act. DWR’s approach should have changed to recognize that regulations alone are not the most effective approach to conservation.”

Some utility officials believe the state agency needs to work more with municipal providers to identify strategies to influence end users. Two such suggested strategies are cooperating to develop ordinances to promote water savings (e.g. ordinances requiring low-flow plumbing fixtures) or working together to determine ways of influencing the water-using behavior of end users. They argue a regulatory approach will not work when dealing with end users.

Tenney says Metro Water’s commitment to water conservation will not be affected by the court decision. He says, “Water conservation is important to Metro Water, as it is to other water utilities, whether the state has an effective regulation in place or not.”

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