By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Calling the figure “arbitrary,” Senate President Warren Petersen wants to scrap the centerpiece of state water law: the heart of the 1980 Goundwater Management Act that requires residential developers in urban areas to show they have a 100 year supply of water and replace it with something much looser.

The Gilbert Republican is complaining about the Department of Water Resources announcing earlier this year it would not issue permits for new subdivisions for some areas on the fringes of Phoenix. That came because a modeling analysis of groundwater at the edges of the basin in and around Phoenix shows there simply won’t be enough water to provide the legally required 100-year supply.

All that resulted in headlines from coast to coast that Arizona was running out of water. And Petersen blamed DWR.

“To send a message to the country that we are out of water was irresponsible,” he said, even if the stories failed to understand this was only for two areas.

The Senate president also blamed it on “bad modeling” of the water supply by DWR.

But Petersen said it is all wrapped up in that 100-year requirement. He said that was a figure seemingly plucked from nowhere.

“Why wasn’t it 105 years?” he asked. “Why wasn’t it 95 years?”

And Petersen, who is a real estate broker who has experience in new home sales and development, said the state with the next highest requirement is California at 25 years.

“We could say we’ll go five years or 10 years higher than anybody in the whole nation,” he said. And with that as the standard and new “modeling” of supply, “there’s suddenly a boat-load of water for housing.”

The idea alarmed Kathleen Ferris. She is the architect of what eventually became the 1980 Groundwater Act.

“The idea that we should be changing this because some developers can’t get what they want is frightening to me,” she said.

Ferris pointed out the idea of a 100-year supply actually predates the 1980 law, having its roots in the 1960s and 1970s when developer Ned Warren made hundreds of millions of dollars selling land in Arizona, generally to those living out of state, without access to water. He later was convicted of 20 counts of fraud.

State lawmakers put language in place in the 1970s that says developers must tell the buyers of new homes if there is an “adequate” water supply, defined as 100 years.

“So it’s not some arbitrary number,” Ferris said. “It’s been in our state’s DNA for decades.”

That, however, was strictly a disclosure law. And nothing precluded the lots from being sold as long as buyers were informed that supply is not there.

All that led to the 1980 Groundwater Act which covers basins in the state’s “active management areas” and added teeth to the supply requirement. But, with few exceptions where cities and counties have adopted their own mandates, that 1970s law requiring only disclosure, with no barrier to construction and sales, still exists.

Petersen said that level of assurance is unnecessary.

“This is insane,” he said.

“When you go to the gas station, do you get a 100-year gas supply?” Petersen asked. “When you go shopping, do you need 100 years’ of food?”

He said there’s no reason that number can’t be chopped — by a lot.

“We have enough,” Petersen said. “And we have the modeling and the regulation. It’s right for housing.”

Ferris said the Senate president is way off base.

“I would say just the opposite,” said Ferris who is senior research fellow at the Kyl Center for Water Policy at Arizona State University.

“Why not more than 100?” she said. “Are we going to just say after 100 years that people are just going to close up shop and move away?”

Petersen countered that other states seem to do just fine without such a requirement.

Ferris said that’s not a valid comparison.

“Have other states had as much land fraud as we’ve had?” she asked. And there’s another bit of Arizona history, Ferris said: the murder of Arizona Republic reporter Don Bolles in 1976 because of his reporting on land fraud schemes.

Petersen brushed aside questions of whether Arizona, as a desert state, is different and has different needs in terms of an assured water supply requirement. He said the climate is the same in much of California.

“Everybody says we don’t want to be California,” Ferris responded.

“So I’m not sure why that’s the comparison,” she said. “California has been struggling with its water supplies for a long time.”

And Ferris said while the snowpack of the last winter provided some relief there, that’s not a solution.
“There are areas of the state that have mined their groundwater almost into extinction,” she said.

Much of Petersen’s push stems from that decision by the Department of Water Resources earlier this year to halt new development in areas around Buckeye and Queen Creek on the fringes of the Phoenix metro area.

Petersen noted the shortage cited by the state was 4.9 million acre feet over the next century, about 4 percent of the anticipated need. An acre foot is generally considered enough to serve three families for a year.

But that 4% gap in the 100-year supply was enough for DWR Director Tom Buschatzke to declare those areas off limit to new development and provoke the headlines that Petersen decries.

“A model that put us off by four years created an image of Arizona that we have no water,” he said.

Lost in all of that was that nothing in that order brought all development in the Phoenix metro area — or anywhere else in the state, to a halt, at least not at this point.

That’s because all existing municipal and private water companies are currently presumed to have their own 100-year supply. So anyone the utility agrees to serve who is seeking to build homes within that service territory is presumed to have the amount of water required — and can start construction without further state approval.

Petersen isn’t the only one who was unhappy with the DWR decision. Spencer Kamps, executive director of the Home Builders Association of Central Arizona said it ignores the reality of what homebuilders have done to conserve, limiting the use of non-functional turf, installing drought-tolerate xeriscaping and integrated water efficient fixtures and appliances.

“Despite these unmatched efforts, the ADWR stopped new home construction in non-designated areas (the ones affected by the order) which are also the more affordable markets for home buyers,” Kamps said in comments to the Governor’s Water Council.

“And it did so in the face of a massive housing supply and affordability crisis,” he said. “These measures are neither good water policy nor good housing and land use policy.”

Kamps does propose some changes in the 1980 Groundwater Act. They deal with issues like recognizing groundwater replenishment and allowing developers to get credit for some of the water that was being used by farms they are replacing.

But none of them involve what Petersen wants: eliminating or revamping that requirement for that 100-year assured water supply.

Petersen, however, maintains there are good arguments to show the 100-year mandate is out of date.
“Right now we have homes that have a net zero impact on water,” he said, replenishing all the water they use.

“How many of those homes can we build?” Petersen continued. “As many as could have a zero impact.”

Ferris said, though, nobody is doing this on a large scale.

“Developers want to do the cheapest thing possible,” she said. “And they’re not about to re-plumb all these homes so they can just be stand-alone centers.”

It might happen — someday, Ferris said. But at this point, she said, it’s “wishful thinking that technology might solve it all.”

She does agree that there may come a point where the 100-year water supply requirement is not necessary. But she said that it has to remain in place for the time being — even if it is for the moment holding up new residential construction in some communities — until the state actually decides that development dependent on groundwater can’t continue.

“Until we say that, no one is going to make good on really doing the hard work and spending the money to make these alternative supplies available,” Ferris said.

Consider she said the idea of taking sewage and treating it to the point where it can be immediately put back into the drinking water supply.

“You don’t snap your fingers and make it happen,” Ferris said. “This is going to take time and it’s going to take tons of money to build the kind of infrastructure to make sure that the water supplies that we’re treating this way are safe.”

And that doesn’t even deal with the question of whether Arizonans will accept what’s known as “direct potable reuse.”

“There’s still a huge part of the population that is skeptical of that,” she said.

Any plan plan to revamp the mandate will get a fight from Gov. Katie Hobbs.

“Attacking critical protections for our finite water resources is irresponsible and it’s not going to happen on my watch,” she said.

“The 100-year assured waster supply is a strength that gives Arizonans and businesses around the world confidence that Arizona will continue to grow,” Hobbs said. And she sniffed at Petersen’s comparison to elsewhere, saying “We will never follow California’s lead.”

We’d like to invite our readers to submit their civil comments on this issue. Email AZOpinions@iniusa.org.