Court Rejects Suit to Limit Groundwater Pumping

Canyon The Arizona Court of Appeals dealt a set back to environmental groups — but did not entirely close the door on them — in their efforts to force the state to reduce groundwater pumping.

The groups claimed the state has violated public trust by not forcing cities, irrigation districts and other groundwater pumpers to reduce their pumping. They said excessive pumping lowered water tables, with the result that rivers and streams have dried up. They contend that the state is required by the public trust doctrine to protect the watercourses.

In its unanimous decision the three-judge panel said the public trust doctrine only applied to those rivers the state owned. It therefore could not rule whether the Arizona Department of Water Resources was avoiding its legal responsibilities in not prohibiting action that threatens surface flows until it was determined what rivers the state in fact owns.

Meanwhile, defining state ownership of riverbeds is an issue in the works. A commission was established with the task of determining which rivers were navigable at the time Arizona achieved statehood in 1912. These rivers or riverbeds are considered state owned.

The appeals court said, "For the public trust to apply, and that is the sole basis for the Center's complaint, there must be a determination that a specific water course that was navigable at statehood has been adversely affected. That determination has neither been made nor alleged." Without a determination of navigability at statehood this court is placed in the position of ruling on an abstract legal question." The lawsuit therefore is premature.

Attorney Joy Herr-Cardillo of the Arizona Center for Law in the Public Interest says she intends to file for a review by the Arizona Supreme Court. If upheld, the ruling could be a formidable legal roadblock since the commission examining the riverbed ownership issue has been making, at best, uneven progress.

Herr-Cardillo says if claims must await the outcome of the commission's effort "the rivers may all be dried up by then."

What Herr-Cardillo is attempting to take on through the courts is a prickly issue that has thus far defied other regulatory and legal efforts at resolving it. The issue is the connection between surface water and groundwater. Herr-Cardillo explains that the suit is not about specific rivers but "the entire statutory scheme under which water use is governed in Arizona." Arizona water law does not recognize the connection between the surface water and groundwater.

The state initially attempted to have the case thrown out in Maricopa County Superior Court, but Judge Paul Katz rejected the effort. The case was then appealed, with the Home Builders Association of Central Arizona and Salt River Project intervening. The homebuilders fear that restricting pumping would limit water supplies for future development. The Salt River Project relies on groundwater along with its surface water supplies to serve its customers.

The court did say that if the commission fails in determining "in a timely fashion" river navigability the court still could intervene in the case.

River Navigability Quest Continues

River navigability in 1912 is being studied. (Photo: Mohave County Historical Society)

When Arizona achieved statehood in 1912 the federal government gave it title to all navigable streams within its boundaries. Viewed by some as a historical curiosity, the situation took on greater importance in 1985. A lawsuit at that time forced the Legislature to address the issue of public ownership of riverbeds.

There is an estimated 39,039 watercourses in the state, with hundreds of thousands of acres of dry streambeds. Much of that land now is in private hands, including sand and gravel operators and other interests. Identifying which streams were navigable in 1912 is critical in determining public and private lands. Obviously private interests have much at stake in the issue.

The Arizona Navigable Streams Commission was established to do the job, and in 1994 legislation was passed setting criteria for the commission to use in deciding navigability. The standards were subsequently challenged in court and determined to be unconstitutional.

The commission at that point had conducted 53 public hearings throughout the state and submitted recommendations finding 14 rivers, two creeks and a number of small watercourses non-navigable. It was, however, back to the drawing board.

Scheduled to sunset in 2002, the commission was rebudgeted and extended until 2004. Budget cuts prevented the commission from beginning its hearings in 2001 as planned. The 2003 budget restored some funding. The commission's term was extended to 2006, with expectations that its work will conclude in February or March of that year. This, of course, is barring further budget cuts.

Small Fraction of Released Toxins Enter U.S. Water

Water was less affected by the release of 7.1 billion pounds of toxic chemicals into the U.S. environment than were the country's land and air, according to a recent U.S. Environmental Protection Agency report. Whereas approximately 27 percent of the released toxic chemicals entered the air and 69 percent settled on land on-and off-site, only 4 percent were released to water.

This information was obtained from the agency's annual Toxics Release Inventory which includes data on persistent bioaccumulative toxic chemicals such as dioxins, mercury and polychlorinated biphenyls.

Although the total quantity of 7.1 billion pounds of toxic chemicals released into the environment may seem staggering the figures for the year 2000 actually represent an improvement. The information obtained from approximately 91,500 forms submitted by 23,500 facilities indicate that total chemical releases into the environment decreased nationwide from 7.8 billion pounds in 1999 to 7.1 billion pounds in 2000, the agency reports. This continues a downward trend evident since the inception of TRIs, with chemical releases having decreased approximately 48 percent since 1988.

Consistent with previous years, metal mining industry releases in 2000 account for a substantial portion of all chemical releases — 47 percent, or approximately 3.4 billion pounds.

The EPA says the report provides communities with a more thorough understanding of the sources of the chemicals in their environment.

"It will be important for us to use these data in conjunction with other environmental information to analyze trends in environmental indicators at both the national and local levels," said EPA Administrator Christie Whitman.

The 2000 Toxic Release Inventory data along with background information on the TRI program are available at http://www.epa.gov/tri/

EPA Funds Hopi, Navajo Drinking Water Projects

The U.S. Environmental Protection Agency recently announced grants to the Hopi and Navajo tribes of northern Arizona to help them develop drinking water supplies.

The $1.9 million grant to the Hopi Tribe will be used for exploration and development of new water sources for the villages of Moenkopi and Shungopavi. The project to locate and develop new wells also will include storage and water mains and distribution to homes or central watering points. Funds also will be used to correct existing deficiencies in the current drinking water systems.

Residents of the more traditional areas within the villages prefer central watering point rather than in-house plumbing.

EPA also announced a $1.9 million drinking water grant and a $278,000 environmental program development grant to the Navajo Tribe

The drinking water projects grant will fund feasibility studies and design and construction of drinking water wells for 23 Navajo communities. The wells will provide additional sources of water and help protect water supplies from arsenic and other pollutants.

The $278,990 grant will help further develop the Navajo Nation's environmental program. A portion of this grant, $71,000, will help 20 Navajo communities address small pockets of illegal dump sites. Currently, there are over 400 open dumps on the Navajo Nation.

The Navajo Nation estimates that 40 percent of all tribal members lack running water, compared with less than half of one percent of the U.S. population as a whole. Nationwide, EPA estimates seven percent of all tribal families lack running water, and over 1,100 open dumps are found on U.S. reservations.