Gilbert lawmaker wants to scrap centerpiece of state water law

PHOENIX – Senate President Warren Petersen wants to remove the heart of state water law: the 1980 Groundwater Management Act that requires residential developers in urban areas to show they have a 100-year supply of water.

The Gilbert Republican, who is complaining about the Department of Water Resources announcement earlier this year that it would not issue permits for new subdivisions for some areas on the fringes of Phoenix, would replace the 43-year-old provision with something looser.

The department made its decision because a modeling analysis of groundwater at the edges of the basin in and around Phoenix shows there 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, 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 boatload of water for housing.”

The idea alarmed Kathleen Ferris, 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 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.

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

Ferris said the Senate president is off base.

“I would say just the opposite,” said Ferris, a 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.

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 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.

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,” the lawmaker said.

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