When Arizona farmer P.T. Hurley was eeking out a living, in the early 1900s, near the Salt River, he filed a lawsuit against other farmers and local Indian tribes to protect his water rights. Little did he know that he was setting the stage for a hundred years of legal wrangling over water rights, all the way from Phoenix to Prescott that began with the forced relocation of an entire Indian tribe to the banks of the Verde River.
The current lawsuit, nicknamed The Adjudication, continues to cause municipalities to spend money studying how much water they have.
When this examiner began probing who and why elected officials in Yavapai County, AZ had authorized a $4.3 million dollar groundwater study, all of the government and non-government sources involved in this new "compact" clammed up.
No one wanted to confirm they had signed the compact and no one wanted to confirm the compact even existed. It was discussed out in the open, once, during city council meetings in Prescott and Prescott Valley, AZ in mid-September, 2012.
But now, with the aid of open records requests that took months of persistence, this examiner has the signed document and a comment from the Salt River Project Water Users Association.
First, the signatories:
Marlin Kuykendall, Lynn Mulhall and Eugene Neil for Prescott; David Rousseau, Terrill Lonon and Frederic Beeson for the Salt River Project Agricultural Improvement and Power District AND the Salt River Valley Water Users’ Association; Harvey Skoog, Diane Russell and Ivan Legler for Prescott Valley. The three entities will split the $4.3 million study cost about evenly, with Prescott Valley paying slightly less. Prescott Valley supplies water to about 30,000 customers by way of about 24 wells – none of them are near a river.
The Prescott Daily Courier did not have the names of those signatories when it reported, “The parties kept their two years of negotiations on the plan secret, until they released a copy of the plan shortly before the two city councils approved it. For more than a year, Prescott-area officials have delayed the Yavapai County Water Advisory Committee's plan to use a U.S. Geological Survey (USGS) computer model of the entire Verde River Watershed to test the possible impacts of future groundwater pumping on local groundwater and surface water flows.”
No members of either city council would answer my questions about secret meetings, the study or signing the agreement.
An incomplete news release quoted Prescott Valley Mayor Harvey Skoog: "This agreement is another step toward creating water security in our communities and our environment. It demonstrates responsible water management through a partnership among the Communities, Salt River Project, the Arizona Department of Water Resources, and other agencies."
"Projects are successful when they make sense to begin with, are well thought out, and a strong commitment exists to make them happen," the news release quoted Prescott Mayor Marlin Kuykendall. "Successful partnerships rely upon people who have a common purpose, and trust and respect among the partners. This agreement is so important in demonstrating the viability of importing water for the benefit of the region, and doing so on a foundation of science.”
Crooked politics and Arizona water rights have been mixing pretty well over time. Remember P.T. Hurley? According to James Jacobs’ book on water politics in Arizona, when Hurley filed suit, the government’s lawyer was a friend of the judge as well as being the vice president of the Salt River Water Users Association, and the governor was the attorney for that association. The governor wanted a dam on the Verde River, not far from where it joins the Salt River, but somehow he forgot to tell the neighboring Indian tribe it would flood their reservation. The tribe was the Yavapai, and as they did in the 1880s, the white men moved the tribe, often, and always in the white man’s best interest. Over the decades various Arizona agencies became the determiners of water rights, various courts including the U.S. Supreme Court weighed in; many dams were built; farms, ranches, and Phoenix flourished, and Indian tribes received their water.
Salt River Project (SRP) has sued to preserve its water claims since 1905, and revived lawsuits in the 1970s and 1990s. Some say the 1974 version of the Adjudication has no end in sight. The money spent on the Adjudication as of the mid-1990s was estimated at $100 Million; the total is certainly much higher by now. At the initiation of the Adjudication, summonses were served by mail on over 849,000 recipients. Approximately 24,000 of those recipients became parties to the Adjudication, eventually filing a total of over 78,000 claims. SRP steadfastly says they have rights to any tributary draining into the Gila River, which runs from New Mexico to the Colorado River, and since the Verde drains into the Gila (eventually), SRP therefore should have rights to that water. In 1985, the Arizona Supreme Court observed, “The case has been pending more than ten years and may well take another twenty for decision.”
Arizona State University law professor Joseph Feller has tried to explain water rights in Arizona, including his published research paper “The adjudication that ate Arizona water law.”
“There are at least a few different ways a party might have obtained a water right in the Upper Verde,” Feller explained to me, “Including the following: past use of water diverted from the Upper Verde; past pumping of water from the "subflow" of the Upper Verde River; transfer of water rights from another party who obtained them by one of the preceding two methods.
“In the case of SRP, its members claim water rights in storage reservoirs on the Lower Verde and in the Salt River downstream of its confluence with the Verde. It is my understanding that they claim that use of Verde River water infringes on their rights to the extent that it reduces inflows to their reservoirs and to the Salt River.”
When asked about the thousands of wells tapping into the aquifer in north-central Arizona, Feller noted, “The delineation of which wells are pumping subflow and which aren't is still, after many years of work, not complete. So, a party could believe that they have a water right based on past pumping of subflow, but others might disagree.”
This reporter wrote extensively about how elected officials have no idea how much ground water is available to citizens of Yavapai County, even after decades of studies paid for by taxpayers’ dollars. Several committees and coalitions, made up of local citizens and elected officials, are trying to determine how much water is available.
Some municipalities pay dues to the water committees so they can pay full time salaries.
“Clarkdale's dues are per the current WAC formula of $1 per capita population. That would make ours roughly $4000 per year,” said Clarkdale, Arizona Mayor Doug Von Gausig. He would not comment on the $4.3 million study. Clarkdale is on the “other side of the mountain” and downstream from Prescott. The two municipalities have been fighting over water rights for years. Clarkdale does not stand to gain from the study.
Also involved in the current study and separate studies is the USGS, SRP, the Upper Verde River Watershed Protection Coalition (UVRWPC), the U.S. Bureau of Reclamation and other committees and entities, which raises the question, “Why do all these people have their finger in the Yavapai pie?” And why do some county supervisors and city council members – like Carol Springer, Chip Davis, Steve Blair and Lora Lee Nye - belong to two different water study committees, or water users associations, at the same time?
Some say the answer is simple: the current batch of elected officials who sit on the committees and steer funding are part of the “NIMBY” crowd and the no-growth crowd, therefore, if they can delay water studies, they can delay development because with development in Yavapai County comes the requirement to show your development has water supplies well into the future. If you can’t show supplies (because the politicians delayed the water study) then you can’t build a housing development.
Yavapai County is beautiful, and a very desirable place in which to live, as reported here http://www.examiner.com/article/arizona-county-copes-with-explosive-growth
But should elected officials stall growth with planned political wangling? Some say, “why not?” All they have to do is keep their electors like mushrooms – fed and in the dark – like the two years of secret meetings.
Two politically powerful agencies are complicit in the wrangling – the Salt River Project Agricultural Improvement and Power District, an agency of the state of Arizona that serves as an electrical utility for the Phoenix metropolitan area, and the Salt River Valley Water Users' Association (SRVWUA), a utility cooperative that serves as the primary water provider for much of central Arizona. According to the Center for Responsive Politics (OpenSecrets.org), SRVWUA is so powerful it gave away $180,000 in political contributions this year. The biggest receivers are winners Jeff Flake, now an Arizona U.S. Senator, and Arizona U.S. Rep. Paul Gosar. Gosar’s district map swallows up both the Verde River and the Salt River. Granted, some donations were equal or small – the Arizona Democratic Party and the Arizona Republican Party each received $5,000 for instance. Not a lot of dough, unless you’re a rural city councilman or councilwoman or rural county supervisor who gets the trickle down. And if you do, maybe you want to proxy the way the big donor wants you to on water issues.
Emailed questions to committee, association and coalition members from this reporter remain unanswered.
The Salt River users association started in 1902 as a way to keep a steady flow of water to Arizona’s biggest city – Phoenix. The SRP power district was authorized by the state legislature in the 1960s and quickly became the state-sanctioned monopoly of all monopolies with electrical generating stations, seven hydroelectric plants, and water rights as far upstream as the headwaters of the Verde River.
But Phoenix’ thirst was not quenched by the Verde or Salt Rivers. President Johnson had to allow for the building of a 336 mile canal that brings Colorado River water to Phoenix and on to Tucson. The Central Arizona Project as it is called is the largest single resource of renewable water supplies in the state of Arizona.
Since 1980, Arizona’s water laws have provided for the administration of water rights by the director of the Arizona Department of Water Resources. But as Feller says in his article, ADWR never promulgated the rules necessary to enforce the law, so there is currently no administrative process for enforcement of water rights in Arizona! Feller asserts that even though water lawsuits have been considered, they can’t proceed in court because of the never ending water adjudication case. Without a decision, there’s nothing on which to base a case.
The 1974 Adjudication was in play six years before the statutory creation of ADWR and its administrative authority. No body of interpretive case law has developed. In this sense, the adjudications have, as suggested by the title of Feller’s article, “eaten” Arizona water law. The Adjudication has now lived through seven U.S. Presidents.
As Feller points out, quite ironically, in April of 2004, SRP, which had initiated the Gila River Adjudication exactly thirty years earlier, filed in the court five motions
requesting preliminary injunctions against five groups of water users in the Verde
Valley. According to SRP, these water users’ diversions and groundwater pumps
were depleting flows in the Verde River, which is a tributary to the Salt River, and were
thereby depriving SRP’s members and customers of Salt River water to which they
were entitled by virtue of their senior water rights.
SRP’s court filing said: The water users named are perhaps among the most egregious, but certainly not the only, upstream water users who continue to engage in illegal and
unauthorized diversions (on the surface or by pumps) that adversely affect the ability of SRP and the SRVWUA shareholders to exercise their vested senior rights. SRP has notified these individuals in writing of their transgressions, but they have refused to stop.
The ADWR has, on at least one occasion, notified water users that it needed to file
an Application to Appropriate (water) or stop using water, and that water user simply refused to do so. A judge in Maricopa County (Phoenix) ruled that SRP was entitled to a preliminary injunction against the Shield Ranch to restrain the ranch from irrigating 22 acres of farmland in the Verde Valley for which the ranch had “no colorable claim” of a water right.
According to SRP staff, SRP is permitted to withhold information from the public and not honor public records requests because they have been determined to be “a private association,” which means, Arizona taxpayers may never get to peek in their books.
SRP replied to my inquiries about the “secret meetings” with a letter from attorney Kathleen Heth which said, “As an agricultural improvement district, SRP reserves the right to contest whether it is obligated to produce records pursuant to the Public Records Act. We direct your attention to the definition of “public body” in ARS 39-121.01 which limits its coverage of special districts to “tax supported districts” which would exclude SRP.”
During my inquiry, the SRP water users association and the SRP power district claimed that they are two entirely separate entities. But look at the signatories above – the same people signed for the association and the district. And, this examiner’s investigation showed they share the same lawyers, and mailing address. The offer I gave attorney Heth still stands: come out from behind the curtain, and tell us how you are helping the water consumers of Yavapai County.
Three members of the SRP public relations team danced the “we aren’t commenting” dance with me for two months. So, I can offer no comment by SRP.
Some water committee members don’t like the findings of the USGS, so what better way to show their discontent than to approve a new study that blocks the USGS study? One committee wants to come up with a plan to increase Upper Verde groundwater recharge by one percent, to a total of three percent of the region's average precipitation – a noble plan, but subject to cooperation by Mother Nature, as I reported in my in-depth article http://www.examiner.com/article/arizona-county-has-no-idea-how-much-wate....
Each of the “water committees” has a different estimate on how much groundwater is in Yavapai County, and that doesn’t seem to bother them. It does bother the taxpayers however, as seen in my previous report.
Retired Prescott businessman-political activist Tom Steele tries to be philosophical about it. “As Samuel Clemens once said, ‘Whiskey is for drinkin' and water is for fightin' over,’" Steele reminded. “Here in Central Yavapai County we have competing interests for our water. Lawyers have made a ‘ton’ off all parties, separating ground water from surface water. It's all water and it is "commingled" as they say. In the modern world, we can't untangle lawyers until we study the crap out of it.”
Because the signatories of the new agreement don’t like the other committee reports, they crafted the new plan which calls for at least five years of collecting water data before creating the Big Chino computer model in six years. The Big Chino is the aquifer that sits under Yavapai County, which no one can seem to quantify, and the computer model came from ten years of work by the USGS but was rejected by the signatories because they don’t like its forecast.
In fact, it’s forecasting so much available water that the “no-growthers” can’t keep developers out, hence the newly crafted delay tactic. Interestingly enough, the water committee actually helped fund the USGS study! Only 15-percent of the study was paid for by federal funds; the rest came from Yavapai County governments.
And in further irony, the same no-growthers have endorsed a plan for a water-gobbling housing development and wind farm for landowner Fred Ruskin and NextEra Energy Resources, north of Prescott. One former committee member and former county commissioner stands to make money off that deal. State Transportation Board Member Bill Feldmeier, a former Yavapai County supervisor, makes no bones about the fact that he represents the interests of Ruskin. Governor Jan Brewer’s office and the Arizona Department of Transportation refused to answer whether they believed Feldmeier’s representation was a conflict of interest, possibly because his term is expiring and they hope he moves on.
Additional wishy-washy and no comment comments by water committee members can be found in a related article on the Prescott Daily Courier’s website: http://www.prescottdailycourier.com/main.asp?Search=1&ArticleID=111058&S...
The fight for water rights in Arizona has been ugly and prolonged and old claims could get in the way of the wrangling politicians, and cause an old fashioned Western shootout because mining companies have water claims along the Verde River dating back much earlier than the Salt River Project water claims.
“The United Verde Extension (UVX) mining company was originally owned by James Douglas, but the mine closed on the 31st of December, 1937,” explained Jim McMeekin of the Verde Historical Society and Clemenceau Heritage Museum.
“The company's remaining assets were transferred to Verde Exploration, LTD. This
company still exists although there is no current mining. Another mine, originally owned by Senator William Clark, was the United Verde Copper Company. They sold to Phelps Dodge Corporation in 1934 and then stopped mining in 1953. Freeport-McMoRan bought the properties owned by the Phelps Dodge Corporation, but there is no mining currently being done.”
Last month, Phoenix-based Freeport-McMoRan made a $9 billion bet on Gulf of Mexico oil and gas assets, according to Bloomberg News. The company is the biggest publicly traded copper producer, with mines in the U.S., Indonesia and Africa.
The mining companies own beautiful shore line sections along the Verde River, including some of the best fishing areas, and the water rights.
One of the mining companies currently donates water, dripping from its mine tunnel, to Clarkdale, so the town can irrigate lawns at its grade school.
Another problem is ditches built by the municipalities along the Verde River. Ditches have been diverting water in the direction those who built them want it to go. Take a little from here, no one will notice; put it over there. Cottonwood and Camp Verde built the diversion ditches years ago, even though that amounts to taking water from down streamers like SRP, or Phoenix golf courses. (see graphic)
Bradley Garner, a hydrologist from the USGS tried to put it in perspective, “The reason major Verde Valley ditches are of great interest is because they represent a major alteration to the natural hydrologic system. These major ditches are more than a few small pumps placed in the river here and there.”
According to Garner, the ditches have significantly decreased the flow of the Verde River.
“We watch those ditches, and the three creeks that feed the Verde, because it isn't enough simply to know how much water you have, you also should know what obligations/demands there are for that water,” Garner said.
Garner co-authored the latest USGS report, which was issued – ironically – at the same time the water compact members first divulged the secret meetings, in September 2012. You can read that report at http://pubs.usgs.gov/sir/2012/5192/
So, if all the members of all of the little municipalities’ water committees had bothered to check with ASU law professor Joe Feller, or the big mining companies, or someone who would talk at SRP, or Jacob’s book on Arizona water law, or even the Arizona Supreme Court, they might have figured out that their collective efforts amount to a spit in the ocean, because they don’t have water rights.
The Adjudication will determine who has water rights. But in the meantime, we can all watch as the little municipalities in Yavapai County, Arizona spend millions of dollars - sometimes in secret, behind closed door meetings - arguing over how much water they think they have.
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