Proposed Law Allows CAGRD to Recharge Less Water

The Central Arizona Groundwater Replenishment District will be recharging less water with legislation now under consideration by Arizona lawmakers. Some say the proposed legislation is merely a technical adjustment to the present law. Others maintain the exemption is a strategy to enable CAGRD to reduce it total recharge obligation.

Understanding the implications of the proposed legislation requires familiarity with CAGRD operations. The CAGRD helps member subdivisions and water providers demonstrate that they have a 100-year assured water supply. Demonstrating an AWS is a legal requirement that must be met before home sales in a subdivision can begin.

CAGRD membership enables a developer to use groundwater to supply the new development, without violating the Groundwater Management Act. CAGRD will replenish (recharge) in each AMA the amount of groundwater pumped by or delivered to its members in excess of the limited pumping allowed under the AWS Rules.

In discharging its responsibilities, CAGRD must meet legal requirements of is own. The recharge and recovery statutes require that the district recharge five percent more water into the aquifer than its replenishment obligation. The proposed legislation will exempt the CAGRD from the five percent “cut to the aquifer.”
Proponents of the legislation argue that other entities such as cities and private water companies that recharge water are not always assessed the five percent cut. Their recharge operations are either classified as annual or long-term storage and recovery. Annual storage and recovery operations are not assessed the five percent cut whereas long-term operations are.

The CAGRD is said to engage in similar short-term operations, although in a different sequence. Instead of recharging water and then recovering it, which is what cities and utilities do, CAGRD replenishes groundwater only after its clients have used a supply. Although the sequences are reversed, the principle is said to be the same: a renewable supply is being recharged into the aquifer within a short period of time. Supporters of the proposed law therefore argue that CAGRD should be granted the same exemption that cities and utilities can obtain.

One difference between the two operations is that for cities and utilities short-term means storage and recovery in the same calendar year. With CAGRD three years can elapse from the time its members acquire groundwater to the time when the district recharges. The CAGRD’s longer time frame is attributable, at least in part, to the delay caused by reporting requirements.

The five percent cut – and the proposed elimination of it – also is an issue with CAGRD’s replenishment reserve. Legislation passed last year requires the district to establish this reserve for use during water shortages, with its long-term credits applied down the road as needed.

Under current law, most of the water CAGRD includes to build up the reserve is subject to the five percent assessment. (Effluent stored at a direct recharge facility isn’t assessed a cut.) This could be a significant amount of water since the reserve may grow to several million acre-feet. Water the district takes from the reserve must be replaced to comply with its ten year plan of operation, and the five percent is again assessed on the recharged water. The proposed law would eliminate the five percent charge on both these transactions.

The rationale offered is that CAGRD pays the five percent charge twice. Also, and even more significantly, proponents argue that the entire replenishment reserve might be considered a cut to the aquifer. The supply of water is expected to remain in the ground, except in limited circumstances when it is “borrowed” and then replaced. It is argued, therefore, that the water generates a long-term benefit to the aquifer and should not be subject to the five percent.

The proposed legislation includes a provision that if the long-term storage credits in the reserve are sold or used for any purpose other than fulfilling a replenishment obligation, the five percent cut would be assessed.

Supreme Court Sidesteps Water Transfer Ruling

The U.S. Supreme Court sidestepped a decision on a case with possible major implications to the operations of water transfer projects. Many water managers in the West have closely followed the case.

The immediate issue is whether a pumping station in South Florida needs a Clean Water Act permit to pump storm water runoff into the Everglades. The Miccosukee Indian Tribes argue that such a permit is, in fact, needed, to protect the wetlands from runoff that often contains contaminants.

The South Florida Water Management District, operators of the pumping station, disagreed, arguing that its operation is not the actual source of the pollutants; it is merely transferring water from one side of a levee to another.

A lower court ruled in favor of the tribe stating that the pumping operators needed a permit since they were piping water with various pollutants into the Everglades. A U.S. Court of Appeals subsequently upheld the lower court decision. The pumping company turned to the Supreme Court.

The Bush administration backed the district position arguing that permits were not required when water from one navigable body was channeled into another navigable body of water.

The Supreme Court voided the appeal’s court decision and ordered the lower court to reconsider the case taking into account the Bush administration argument. The sole justice to disagree with the decision was Justice Antonin Scalia who stated that the lower court decision should have been affirmed.

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