8/14/2007 6:00:00 PM Chino officials, others voice concerns on water rule changes
By Joanna Dodder Special to the Review
Chino Valley officials expressed concerns Aug. 6 that the town would lose some of its water rights under proposed new Arizona Department of Water Resources rules.
While the new rules would boost Prescott's rights to import Big Chino Sub-basin water, Chino Valley wouldn't get the same boost.
If Chino Valley ends up with less water because of the rulemaking, "I would consider that a taking," said Mark Holmes, Chino's water resources manager.
A 1991 state law gives the City of Prescott the authority to import as much as 14,000 acre-feet of Big Chino groundwater south to its depleted Little Chino aquifer. The state has estimated preliminarily that the actual amount is 8,717 acre-feet, but the number won't be final until Prescott applies for a specific amount.
A companion 1991 state law also gives Prescott Active Management Area (AMA) municipalities (Prescott, Prescott Valley, Chino Valley and Dewey-Humboldt) the authority to buy or lease Big Chino land that owners irrigated between 1975 and 1990, and convert the irrigation use to municipal use. All but Dewey-Humboldt have purchased this kind of water.
Since the 1991 law laid out the 14,000 acre-feet in writing, that is an express reserved right, Department of Water Resources Assistant Chief Counsel Ken Slowinski said at Monday's meeting in Prescott about the draft rules.
But since the 1991 law does not predetermine the amount of historically irrigated acreage, that groundwater has no reserved 1991 right, Slowinski said.
Sandy Fabritz-Whitney, an assistant director of the Department of Water Resources who oversees AMAs, said Holmes had a good point and he should submit it in writing before the Sept. 5 deadline for comments on the preliminary draft rules.
"There's a lot of people here really worried...that most of this is about Prescott being first in line," said Arizona Rep. Lucy Mason, R-Prescott.
The Legislature gave Prescott its priority in 1991, Fabritz-Whitney said. The state is just starting on its rulemaking because municipalities just now are starting plans to use water in neighboring sub-basins.
Competing uses
Prescott and Prescott Valley have been working on one Big Chino pipeline project for about four years and already have spent more than $27 million.
Chino Valley announced this year that it would partner with a Big Chino landowner (Chino Grande LLC) on its own pipeline at no cost to Chino Valley.
Chino Grande also is seeking state approval to use water in its own Big Chino subdivision.
Back in 2002 when the Chino Grande land was the CV/CF Ranch and Prescott wanted to dig wells there, the state concluded it had 28,800 acre-feet of groundwater available. But Prescott ended up buying neighboring land, and the state decided that number was unrealistic before issuing a final water report.
The state required Chino Grande LLC to file a revised application to show it has a 100-year adequate water supply. The February 2006 application estimates the property has 20,776 acre-feet available for as many as 6,000 homes.
After Monday's meeting, Chino Grande partner Larry Geare said the LLC has spent more than $1.5 million in studies to try to prove that much water is available, and the owners haven't decided whether they'll actually build the homes.
Geare accused the agency of asking Chino Grande for more and more hydrologic information so it can delay Chino Grande's final report to help Prescott be first in line.
State officials countered that new information led them to believe the 28,800 number was too high. They also noted that Prescott was the previous applicant.
New rules have caveat
Even though the proposed rules help Prescott, they wouldn't give Prescott an automatic 1991 priority, said Fabritz-Whitney and Doug Dunham, manager of the Assured and Adequate Water Supply Division at the state.
Under the new rules, if Chino Grande or another Big Chino subdivision developer gets a final state water report before Prescott files basic papers about its plans, those developers wouldn't have to consider Prescott's 1991 water rights in their analyses.
That's because - to get its 1991 priority date - Prescott needs to submit information such as the location of its proposed Big Chino wells, and the amount of the 14,000 acre-feet it thinks state law grants it after subtracting water related to Indian settlements and the Central Arizona Project, Fabritz-Whitney explained. The state can't just require every Big Chino developer to assume 14,000 acre-feet already is reserved, she said.
That means Prescott's 1991 priority date doesn't cover any applications that get in line first.
"It looks like this would cause a land rush," Tom Slaback of the Sierra Club said at Monday's meeting.
"Any time we do a rule package, there's always that danger," Fabritz-Whitney responded. "It's happened in the past."
How much water is available?
Chino Valley is "making everybody a little nervous right now" with its new pipeline plans, Chino Valley Mayor Karen Fann said at the Aug. 6 meeting.
She asked state officials if they have any idea how much total groundwater is available to use in the Big Chino Sub-basin.
State officials couldn't give her a number. The Daily Courier has asked state officials repeatedly for such a number for months, too, with the same answer. Federal officials who have studied the Big Chino also say they need more information to make such an estimate.
Still, the state can decide whether enough water supplies exist for specific projects by studying the smaller well region in detail, Dunham explained.
Lot split fears
Fann expressed fears that if enough Big Chino water isn't available for all the Prescott AMA municipalities, that will encourage the proliferation of homes on lot splits with their own wells and septic tanks that have no state or local oversight, which is not good for water management efforts.
The new state law that allows local governments to adopt "adequacy rules" should help, Fabritz-Whitney said. The new law says county boards of supervisors and municipalities may require subdivisions to provide 100-year water supplies.
Right now, if the state concludes developers outside of AMAs such as Chino Grande don't have adequate water supplies, the developers can build anyway.
Yet as the only current "designated water provider" in the Prescott AMA, Prescott has to prove annually that it has enough water to meet demands.
The county also could use the adequacy rule to help protect the Verde River, Fabritz-Whitney said in response to a question. Scientists have concluded that the Big Chino Sub-basin supplies at least 80 percent of the base flow for the river.
However, the Department of Water Resources doesn't plan to draft rules for the new adequacy law until this fall, so Fabritz-Whitney couldn't explain just how far the county could go with an adequacy rule.
No matter what, a new adequacy law wouldn't stop lot splits with unregulated wells and septics for each home.
Noting that the state is requiring the Prescott AMA to stop depleting its Little Chino Sub-basin by 2025, Fann also wondered out loud if Prescott will be the only municipality held responsible for meeting the deadline if it's the only one that can end up importing Big Chino water.
"Nice try," Prescott Valley Town Council Member Mike Flannery said.
