Silver et al. v. Pueblo del Sol et al.
On May 17, 2013, the Center filed a Complaint in Maricopa County Superior Court on behalf of Patricia Gerrodette seeking judicial review of the Arizona Department of Water Resources' (ADWR) decision to grant an adequate water supply designation to Pueblo del Sol, a private water company that is proposing to deliver groundwater to a massive master planned community planned for Sierra Vista. Ms. Gerrodette objected to PDS's application when it was first submitted to ADWR, and appealed the decision in an administrative proceeding. The Center became involved at the judicial review phase because her attorney at the administrative level, ASU Professor Joe Feller, was tragically killed in April, 2013.
The case raises a critical issue that involves an intersection of federal and state law. Under state law, when deciding whether to grant an application for an AWS designation, ADWR must determine whether the proposed water supply will be physically, legally and continuously available for at least 100 years. In evaluating PDS's application, however, ADWR refused to consider the effect that federal water rights held by the Bureau of Land Management for the San Pedro Riparian National Conservation Area (SPRNCA) would have on the "legal availability" of the proposed water supply. However, federal law protects federal surface water rights from the adverse effects of groundwater pumping. Thus, if the pumping from the new development were to impair BLM's surface water rights --which it most certainly will do given the current overdraft of the aquifer--then BLM would have the right to enjoin the pumping, thereby making the water legally unavailable.
The BLM and Robin Silver, who also objected to the application and appealed the Director's decision, sought judicial review as well. In June 2014 the Superior Court ruled in favor of the appellants and vacated the agency's finding of adequate water supply. Both ADWR and Pueblo del Sol have appealed that ruling. In June 2015, Gerrodette and Silver filed a joint answering brief in the Arizona Court of Appeals. Both the Answering Brief and an Amicus Brief filed on August 31 in support of appellees by John Leshy and Robert Glennon are available below.
The Arizona Court of Appeals heard oral argument on the case on April 28, 2016. You can view the argument here.
On November 8, 2016, the Court of Appeals issued its Opinion. Although the court vacated the trial court's decision, it remanded the matter back to ADWR with instructions to consider BLM's reserved water rights.