Court won't order AZ to study if San Pedro basin needs groundwater management

In a brief order, the justices rejected arguments by two environmental groups that under state law, the department is ignoring a legal requirement that it regularly determine whether groundwater depletion requires the state to form an "active management area'' that could impose limits on pumping. The environmental groups also said Hobbs, as governor, was required to order the study.

The justices did not give a reason for their decision.

The order from the high court leaves undisturbed the conclusion by the Arizona Court of Appeals that the challengers were wrong about what Hobbs and Arizona Department of Water Resources, under her control, are required to do.

In that earlier ruling, appellate judge Kent Cattani acknowledged the law does require the department to "periodically review'' whether to create an active management area in parts of the state that now have minimal to no limits on groundwater pumping. 

He did not dispute arguments by the Center for Biological Diversity and the San Pedro Alliance that it has been more than two decades since the state agency conducted such a review of the San Pedro Basin.

But Cattani, writing for the unanimous three-judge appellate panel, said the law never spells out how often such reviews must be conducted, and doesn't define the term "periodically.''

"This phrasing thus leaves the department discretion to determine how frequently to conduct reviews,'' Cattani wrote.

Attorney general disagreed

Of note is that conclusion hasn't been shared by Attorney General Kris Mayes.

Three years ago, before the environmentalists' lawsuit was filed, she wrote to ADWR Director Tom Buschatzke pointing out the requirements in the law. Mayes chided the lack of action by the department to even look at the basin, one of the most environmentally fragile in the state, where the riparian area that supports multiple species has been affected by groundwater pumping.

"Two studies of a single basin in a 40-year period does not satisfy the statutory duty to periodically review 'all areas which are not included within an active management area,' '' Mayes wrote, quoting from the law. "If you believe that ADWR has been unable to comply with the statutory requirement, please let me know why ADWR (has) been unable to do so.''

That letter drew a sharp reaction, not from Bushatzke but from Hobbs.

"In the future, I invite you to teach out to me or my staff directly regarding suggestions or concerns that you might have about an agency that I oversee,'' the governor responded to Mayes, her fellow Democratic elected official. Hobbs said if Mayes has a disagreement with any agency policy "you are most welcome to convey such disagreement directly to my office.''

An aide to Mayes said Monday that, given the decision by the Supreme Court to uphold the lower court ruling, there is a need for legislators to update the definition of "periodically'' in the statute.

"The attorney general believes that, statewide, we need to get our hands around what our water supplies are going forward,'' said the aide, Richie Taylor. He said Mayes considers that particularly important now "with the type of cuts we're seeing from the Colorado River.''

Importance of groundwater to basin 

The 2024 lawsuit said ADWR failed to carry out its "mandatory duty'' to conduct a review to determine if there needs to be some sort of state management to "preserve long-term, reliable groundwater supplies'' in the San Pedro basin. The lawsuit separately said the governor, by failing to tell the department to conduct a review, violated her constitutional duty to "take care that the laws be faithfully executed.''

Such a study would determine whether the basin needs to be designated as an AMA, the lawsuit said. 

Arizona's 1990 groundwater code initially set up four such AMAs, in the Tucson, Pinal, Phoenix and Prescott areas. There are now eight, with one formed by a vote of residents of the Douglas area and the others were designated by the ADWR based on studies about issues including water use and potential water quality degradation.

Cattani, in the appellate court ruling, agreed that the San Pedro River, at the heart of the groundwater basin, is unique, being the last undammed, free-flowing river in the desert Southwest.

"It is an arid region, and groundwater is the sole source of water for inhabitants of the basin, which includes Sierra Vista, Benson, Bisbee, Tombstone, Huachuca City, and the Fort Huachuca Military Reservation,'' he wrote. "Public and private water use over the past century has contributed to the degradation of the San Pedro River ecosystem and the alteration of the river's flow.''

Cattani also pointed out that the basin includes the San Pedro Riparian National Conservation Area, designated by Congress in 1988 "to protect the riparian area and the aquatic, wildlife, archaeological, paleontological, scientific, cultural, educational, and recreational resources of the pubic lands surrounding the San Pedro River.'' He noted that Congress reserved water "sufficient to fulfill the purposes'' of the conservation area.

Law allows officials to use discretion 

But none of that, the judge said, entitled the challengers to what is known as "mandamus'' relief, essentially a court order to compel a public official to perform an act specifically required by law.

The key to getting that legal relief, he said, is that the act would have to be purely "ministerial.'' That means the law must specifically detail what and when the official must take that action and "nothing is left to the public official's discretion.''

But Cattani said the law requiring Buschatzke to "periodically'' conduct a review to look for areas to regulate doesn't meet that test.

Robin Silver, a co-founder and board member of the Center for Biological Diversity, declined to comment Monday on the Supreme Court decision.

Governor's position 

But Silver previously lashed out at Hobbs for failing to order ADWR to at least conduct a study.

"Why would a governor who professes to care about water fight an active management area for an area whose central area is going dry and whose aquifer is over-allocated?'' Silver asked then. "The governor has made a choice to aggressively try to help the river die. That's on her.''

Gubernatorial press aide Christian Slater did not respond Monday to questions about why Hobbs has not directed ADWR to study the San Pedro basin to see if new groundwater regulations are necessary to protect the river.

Instead, he provided a statement saying Hobbs has funded water conservation and recharge measures and has worked with Mexico — the San Pedro runs into Arizona from the south — through efforts of the Arizona-Mexico Commission.