Never closer and never further away: The dispute over updating Arizona's rural groundwater law

TLS: Turning water into a commodity with these certified water rights runs counter to nature conservation.

HC: He is referring to a provision in the original Senate bill that would provide water users with certificates guaranteeing water rights. This essentially means that users who pumped before a BMA was established are guaranteed the same amount of water. He says the council did not intend for it to work that way.

TLS: We wanted to acknowledge everyone who is currently using water and then bring all of those people to the table to decide on conservation targets and make sure that no one group has to claim the majority of it for themselves. I mean, there should be agriculture, industry and communities. We all agreed on that, but giving out water rights that you can actually save and then sell or lease is contrary to conservation.

HC: Setting up an administrative area, be it AMA, INA or BMA, is a long bureaucratic process… and is similar to founding a new, strange city.

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First, the boundaries need to be negotiated; who should be included in this management area? … Is everyone who lives in these areas in agreement? Then it needs to be decided who should be responsible for this area… usually a water council. But who is suitable for the council? Are the people appointed or elected? Then there is the question of what the council will actually do. This is usually called a management plan, which is designed to implement the council's management objectives.

Phew! That's a lot! All of these questions provide endless opportunities for political disagreements to stall things, not to mention the fact that the whole process usually takes years. The latest AMA surrounding Douglas was approved by voters in 2022 and just this month submitted a first draft of its management plan.

Lingenfelter said he was concerned about the Senate bill's guidelines for electing water board members, particularly that it could turn into a “popularity contest” among big-business representatives who have plenty of money for expensive election campaigns.

TLS: When the bill was initially dropped, there was an election component to elect a new groundwater board, and there was no guarantee that all of these people weren't going to be representatives of international or California or other large agricultural corporations. There was no mention of a hydrologist or any kind of water modeling.

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HC: Another area of ​​tension on the Senate bill’s side was the management plan and its implementation…

In its early drafts, SB1221 – the bill the council dropouts drafted – prioritized economic interests and limited the authority of any potential management strategy. It did not include mandatory cuts in water use, as the council wanted, nor specific savings targets. It mostly laid out what the department or governing body could not do, Lingenfelter says, which included setting limits on how much a user could save…

TLS: Your plan couldn't have predicted that you would save more than 10%, and I think in the first ten years the savings rose to 15%. But what if a pool could save 17% or 20%? Why would we stop that?

HC: The Senate bill essentially said that any cuts to water users would have to be the same for all users. So small private wells would have to reduce their use by the same amount as a 40-acre farm. Since both stakeholders would have to agree on a percentage to reduce, the logical thing to do would be to make the smallest possible cut to protect small water users from unreasonable expectations. Large water users, on the other hand, would face little regulatory pressure.

But they didn't quite succeed, as Kerr explains.

S.K.: There were absentees in the House, so we knew we didn't have enough votes to get the proposal to the governor's desk, but we wanted to show, and stakeholders needed to see, that their work wasn't in vain. And we got every single Republican in the House to vote for the bill. But we just didn't have the 31 votes we needed.

HC: The bill that made it to the House, however, included significant concessions from the Farm Party. The language about equal percentage savings for all consumers remained … but they also agreed to a mandatory 10 percent reduction in water use for all consumers within 10 years, plus another 5 percent after that. And that was hard-won, Smallhouse says.

SS: A 10-15% water saving is a huge burden on a farmer. This would require significant investment in better water saving technologies and people need to understand that many of the farmers in these basins already have the most modern technology and a 10-15% water saving literally means that farmland can no longer be farmed.

HC: Quick note: The 10% cut would be phased in over a ten-year period. The bill prohibits a cut of more than 2% per year.

Agricultural stakeholders also agreed to a council appointed by the governor, a concession compared to water council elections.

But the fireworks weren't over yet. At the last council meeting, just three days after the bill failed, several Democratic lawmakers expressed genuine anger at the last-minute attempt to pass it. Here's Tempe lawmaker Stacey Travers at that meeting, talking about how she felt the Senate bill didn't represent the council's interests and was boilerplate, which was exactly what the Republicans/Ag complained about before they left.

And here is your warning that strong language will soon be used…

ST: Frankly, I'm a little bit frustrated and a little bit angry because, although I'm incredibly honored to be part of this council, I'm not really sure what the point of me being here was. Because none of what we had to say was ultimately heard. 1221 was written before we came to the table and had these negotiations. We were here and now we're sitting here six months later with another presentation, not really about what we talked about but what you all talked about in the closed-door meetings. And so this is what, a little meeting to tell us what you did and that we should be there? Frankly, I think that's pretty bullshit.

ZZ: After the break, Hannah takes us to the other side of this fight.

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ZZ: This is Tapped, a podcast about water. I'm Zac Ziegler. Before the break, we heard about an attempt to pass a bill that many members of the Arizona Water Council felt was not adequate. Now Hannah Cree takes us to the other side of the debate and her attempt to pass sensible water legislation.

HC: Now let's turn to the other side of the table: the supporters of tighter groundwater regulation. They are usually Democrats, but also include Republicans like Lingenfelter from rural areas and farmers like Ed Curry, a chile farmer from Willcox who sits on the council and peppered the meetings with blue-collar jokes like these…

EC: Gail, I take my hat off to you and your group for making a lot of concessions and compromising some weaknesses and trying to get here. At the same time, I think we have to give a little more than Gail thinks.

HC: Curry said he had been approached by the Republican and farmer sides about their bill, but many council members said a House counterpart, introduced by Sundareshan and Chris Mathis, another Democrat, would better reflect the nine months of sessions.

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The House bill would have given the ADWR director more power, including the ability to speed up the process of establishing management areas if he or she identifies certain groundwater problems, such as subsidence.

Proponents of regulation had originally proposed a mandatory cut of 20 percent over a ten-year period, but eventually went back to 10 percent.

Rather than specifying what the board cannot do, the bill also gives the board much more structured guidelines and incentives for all types of water users to use less…think recommendations for water quality monitoring programs or programs that benefit users who try to use recycled water.

They also tried to crack down on something you heard about in the last episode: hedge funds buying up land in Arizona to potentially sell the water rights to other parts of the state, Lingenfelter explains.

TLS: We were fundamentally opposed to creating a similar market for rural groundwater because many rural communities have no Plan B for a water source.

HC: The House bill states that while the sale of groundwater certificates is permitted, any transfer of water rights to another owner will reduce the allocation of that certificate by 15 percent.

The House's pro-regulation bill had to pass the Joint Committee on Natural Resources, Energy and Water, chaired by Gail Griffin of Cochise County – who, it should be recalled, had pledged her support to the agricultural interest groups that walked away from the negotiating table.