Secrecy, subterfuge: How Arizona passed pioneering groundwater law

In the late 1970s, the idea of passing a groundwater law seemed hopeless, absent divine intervention. City, farming and mining interests had warred over who should control groundwater rights, with no compromise in sight.

Decades of efforts in the Arizona Legislature to pass a law limiting groundwater pumping produced nothing. A State Groundwater Study Commission formed in 1978 wrote recommendations for a law and held public hearings, but couldn’t get anything through the Legislature. That was due at least in part to opposition from the agriculture industry, which then, like now, used the vast majority of Arizona’s pumped groundwater.

But in June 1980, the unbelievable became reality.

Then-Gov. Bruce Babbitt, a Democrat, signed the Arizona Groundwater Management Act. It for the first time required the Tucson, Phoenix and Prescott metro areas to reach “safe yield” — a catchphrase for bringing pumping into balance with replenishment of the aquifer — by 2025. The Santa Cruz Active Management Area, covering part of Santa Cruz County including Nogales, got the same goal in 1990.

The law created the Arizona Department of Water Resources and gave it the power to impose water conservation requirements on farms, cities and industries alike. In an effort to stem the land fraud that had run rampant in Arizona in the ‘60s and ‘70s, the law also required all new subdivisions in the Tucson and Phoenix areas to show they had an assured 100-year water supply before they could sell lots.

Six years later, the Ford Foundation selected the law as one of the 10 most innovative state and local government programs in the United States.

How did it come about?

It was one part stealth negotiating between Babbitt and the U.S. Interior Department. And it was one part extended, closed-door negotiations among all the key water players, which violated all norms of democratic process and transparency — and worked.

In 2016, Babbitt gave a condensed account in an interview, published online, with Arizona Department of Water Resources communications administrator Doug MacEachern. Here it is:ADWR: What was the major motivation for passing the Act? Was it largely urban over-reliance on groundwater extraction?

Babbitt: Sometimes things have to get so bad that it’s almost impossible to do anything more before people really come together.

The issue of groundwater had been getting progressively worse for 30, 40 years. It was going to reach the point that a variety of things had happened. Most notably, the state courts had enjoined the mines from transporting water. I think the urban representatives were starting to see it. Their future was affected.

The Interior Department was getting restless over the Central Arizona Project because the (CAP) law had language saying the state had promised to control its groundwater over-drafting. Those forces all came together.

The whole structure was ready to collapse. And, sometimes, it’s that kind of disaster that finally motivates people to do what they perhaps should have done much earlier. But the table was set when I took over those negotiations

ADWR: The lore of the law is that it was an unprecedented piece of bipartisan negotiations. But you brought up the feds. Is it fair to say that the feds played a role by leveraging the CAP?

Babbitt: Oh, yeah. We negotiated in private, outside the Legislature, for I would guess more than a year. We had the great good luck of having tremendous legislative leadership in the presence of (House Republican Majority Leader) Burton Barr in the House and (Republican) Stan Turley who was president of the Senate, and Alfredo Gutierrez, who was the Democratic (Senate minority) leader. Really, really, great leaders.

Interior Department was in the background for the first 90 to 95% of the negotiations. But as we reached an impasse, I contacted Cecil Andrus, who was then the secretary, and said we need to get the Interior Department suited up and into the game. I kind of made a deal with him.

I said, “ ‘Cec, you have to threaten to cancel the Central Arizona Project in order to motivate people to get going.’ And, I said, ‘Of course, I will deny that I ever asked you to do it, and I will condemn you for over-arching federal interference.’ “

But it worked. He came to Arizona (in late 1979) and kind of read the riot act and it motivated people and we were able to cross the last 10 yards as a result of that.

ADWR: That’s marvelous inside baseball. But how did a Democratic governor get conservative Republican legislators to buy into this?

Babbitt: Well, bear in mind that the Legislature had failed, again and again, over the preceding decade. They’d put up groundwater study commissions. They’d actually been unable to do anything.

The leadership agreed at that point that we’d take a really unusual step and take it entirely out of the legislative process and set up a negotiation behind closed doors with the interest groups — the mines, the cities and agriculture — and the Legislature would basically stay out of it except for the participation of Stan Turley, who kind of reported back to the Republican leadership that we were making progress.

And, remarkably, once we had drafted the bill — several hundred pages — I called a special session of the Legislature. In June of that year. The bill was introduced and passed in one day, with no amendments, and virtually no debate.

Now, I suppose people who worry about process and open meetings and transparency would say that was hardly the way to pass a law. But the times demanded it. It was an urgent issue. And in the context of what had to be done, the members of the Legislature just stood aside. And we got it done.