Sorting through provisions of Prop. 200

When it comes to water, City Hall is frequently in hot water.

In the 1990s a voter initiative — later repealed — put some serious clamps on how Tucson could use Central Arizona Project water. Just 15 years earlier, a majority of the City Council was recalled over water rates.

Next month, voters will have their say again, deciding the fate of an initiative to severely limit city use of reclaimed water, cut off new water connections when growth outstrips the reliable water supply and repeal the $14-a-month garbage fee, which appears on water bills.

"The Tucson Water Users Bill of Rights," authored by former state lawmaker John Kromko, would also mandate current service levels be provided forever, block the city from adding more unrelated charges to water bills and prevent Tucson Water from being privatized.

Critics have leveled wide-ranging charges against Proposition 200: It intertwines too many issues, creates a "toilet-to-tap" bogeyman that isn't real, and would cut off the water supply to the University of Arizona and local hospitals.

Kromko and his supporters retort that, for too long, city government hasn't listened to voters, demonstrated by the City Council's failure to repeal the garbage fee, fix the long-term water situation or put any curbs on growth.

In the face of so many claims and counterclaims by the two sides, the Arizona Daily Star put questions about the initiative to six independent state and national water experts.

For the most part, they found it poorly written, using too many terms that are ambiguous in state water law. They also contend it won't limit growth and sprawl — a major goal — because water law is an ineffective way to regulate growth.

Still, some residents and environmentalists question if doing nothing is worse. "We have got to get some kind of control over the sprawl," said Sylvia Berman, a native Tucsonan.

Voters are angry over public officials' inaction on growth issues, said Grady Gammage Jr., a Phoenix land-use attorney. "It's a backlash to the frustration that when the City Council talks about growth issues, they don't talk about water."

Most legal experts said the initiative is so complex and unclear that what it means will be settled in court.

"A lot of terms in here, who knows exactly what it means?" said Peter Culp, a Phoenix environmental and water attorney. "A judge would try to decide what they mean."

Garbage-fee repeal

By far the most clear-cut issue in the initiative is the repeal of the $14 garbage-pickup fee, started in 2004 to balance the budget in lieu of raising taxes.

"It's called a trash fee, but it's really a moneymaker," passed instead of raising taxes, said Daniel Patterson, a city planning commissioner.

The fee was a big issue in the 2005 election, which saw two of its Republican supporters defeated. But while they're gone, it remains.

The Democratic council campaigns were tied to repealing the garbage fee, said John Garcia, a University of Arizona political science professor, and "once they came into office they didn't do that." The initiative is, in part, a "spillover" from that, he said.

The repeal of the garbage fee would cut $24 million from the city's budget, City Finance Director Jim Cameron said in a September memo.

Kromko disputed claims that the measure will gut the Police and Fire departments. Instead, he said, the $24 million can be made up by cost-cutting and by the annual growth of the budget from growth in sales taxes and other revenues.

Cameron said cuts wouldn't come from existing services, but would derail the hiring of 80 police officers and 25 firefighters and prevent 16 miles of road paving planned over the next two years.

Toilet to tap

A central plank of Proposition 200 is the prohibition of "toilet to tap" — reclaimed sewage water delivered to homes or recharged into wells for storage.

The "No on 200" campaign contends "toilet to tap" is already banned by state law. It's "a red herring that Kromko uses to alarm people," said Carol Zimmerman, a spokeswoman for the No campaign.

What is at issue is what the state ban covers and how easy that would be to circumvent.

Direct delivery of effluent treated to today's standards to homes is clearly prohibited by Arizona Department of Environmental Quality regulations.

Treating effluent and pumping it into the ground to mix with groundwater is legal but would be banned under Kromko's initiative.

Linda Taunt, ADEQ's deputy director for water quality, believes that doing more than recharging the effluent will require a change to ADEQ rules — a lengthy and difficult process.

But two Arizona water lawyers contend that serving reclaimed water treated to higher drinking-water standards isn't against the law.

"It's not prohibited if you treat effluent to potable-water standards," said Michael McNulty, a water attorney with Lewis and Roca. "You have to distill it to get it there. The reason it isn't happening much is (that) distillation is an expensive process."

Mark Holmes, water-resources director for Chino Valley, said it's a "fair assessment" that effluent treated to drinking-water standards could be delivered. However, he criticized Proposition 200 as "crude" because it prohibits potential future water-treatment technologies from being considered.

Stopping new connections

Proposition 200 requires the city to stop new connections when the estimated demand for water reaches the reliable supply — which the initiative defines as 140,000 acre-feet per year.

It is the provision raising the most questions about the workability of the proposition.

What is "water"?

If the proposition applies only to potable water, as Kromko contends, Tucson Water estimates new connections would continue for about 12 years.

If the water-use maximum includes reclaimed water used for irrigation, the cutoff could be as early as next year if the current drought worsens.

The initiative doesn't specify just potable water.

City Attorney Mike Rankin said he interprets "water" to mean both potable and reclaimed water, citing Arizona case law saying reclaimed effluent is considered "water."

Kromko said this is "a made-up issue" to confuse voters.

McNulty said a judge would likely find Kromko meant potable water because the 140,000-acre feet refers to the city's CAP allocation, which is drinking water.

But Culp, the Phoenix water attorney, said, "My guess is the city is right. … A judge could read that what they meant was potable water, but that's not what it says."

Is the 140,000-acre-feet cutoff point realistic?

Proposition 200 defines the region's reliable water supply as 140,000 acre-feet.

The city's Central Arizona Project allotment of Colorado River water is 144,000 acre-feet a year. The state has certified that Tucson has an assured water supply of 184,000 acre-feet for the next 100 years.

Zimmerman called the 140,000-acre-feet cutoff "arbitrary and unscientific." Water experts back her position.

"That number doesn't make any sense at all," McNulty said.

Gammage, a senior fellow at Arizona State University's Morrison Institute for Public Policy, questioned, "Where did he come up with that number?"

Kromko said he probably should have used the city's 144,000-acre-feet allocation in the initiative, but said he felt the cap in Proposition 200 is "very close to being right."

Would the initiative stop growth or encourage sprawl?

Water and land-use experts unanimously conclude it won't limit growth.

"In the western United States, the availability of water has not served as a limitation on growth," Culp said. "Just because the city water company can't serve you water doesn't mean you can't get water."

It would simply cost more, he said.

Growth can't be turned off simply by regulating water, said Jim Thebaut, who made a documentary film about the worldwide water crisis called "Running Dry."

"We need real solid, hard-hitting land-use planning," he said. "That, to me, is a much more coherent way of looking at it."

Kromko countered that he is the only one offering solutions, and politicians are afraid to even talk about water. "Initiatives are needed when the political process won't work," he said.

But the experts say an initiative, particularly one limited to a single jurisdiction, would just redirect growth, not stop it.

McNulty said Proposition 200 could freeze growth within the Tucson Water service area, but would have no effect outside it. "It would accelerate sprawl, I don't think there's any doubt about that," he said.

Culp said it would encourage sprawl because drilling your own wells costs more, creating an economic incentive to move to suburban areas served by other water companies.

Patterson, the city planning commissioner, was one of the few dissenters, noting growth is already occurring in those outlying areas.

If they can't get city water, couldn't developers just drill their own wells?

The experts say yes, although it may be more costly for developers to have wells.

State law says any new development in a water service provider's area, like Tucson Water, must hook up to that water provider, Culp said. But if the city denies it service, the development can drill a well.

Berman, who backs the proposition, said the No on 200 campaign is distorting the issue by making it seem like wells will pop up like weeds after a monsoon rain, when it is "monumentally" hard to get a permit.

But McNulty said she's wrong, that well permits are relatively easy to get if you're outside a water service area, which is where a Tucson Water denial of service would leave you.

While acknowledging they could get permits, Kromko said the developers would also have to buy water from the Central Arizona Groundwater Replenishment District to prove a 100-year assured supply, which could be prohibitively expensive.

Would water really be cut off to the University of Arizona and hospitals?

Opponents of Proposition 200 and city officials contend a provision prohibiting Tucson from giving water to other "distributors" would force the city to shut off water to the UA, the Veterans Affairs hospital and University Medical Center because they are considered "water providers" under state law.

The problem is that the word "distributor" used in the proposition is not defined in state law. The law refers to "providers." The experts conclude a judge would have to decide if the two are the same to determine if this provision applies to the school and hospitals.

Backers contend this argument is a scare tactic and the faucets at those facilities would never run dry.

Kromko called Rankin's argument ridiculous and said "distributor" means other municipal water companies. Although "distributor" isn't defined in groundwater code, he said, "It's defined in the dictionary."

The legal experts interviewed by the Star say Kromko is wrong. "The argument that it will require cutoff is substantial," said UA law professor Robert Glennon.

McNulty said Kromko may have meant water companies, but, "It's too bad he didn't say that. The reason we're all floundering is Mr. Kromko did not use a term defined in groundwater code."

But even if Kromko miscalculated on that provision, Proposition 200 critics concede it's unlikely the water would ever be turned off to those institutions because a judge would likely issue a stay to keep the water on until another source was found and ready to be used.

THE EXPERTS

The independent state and national water experts interviewed for this report:

Robert Glennon, a University of Arizona law professor; Peter Culp, a Phoenix environmental and water attorney; Grady Gammage Jr., a Phoenix land-use attorney; Michael McNulty, a water attorney with Lewis and Roca; Mark Holmes, water resources director for Chino Valley; and Jim Thebaut, who made a documentary film about worldwide water problems.