2/11/2009 10:34:00 PM ADWR hearing wraps up without resolution
Courtesy
Timeline of Prescott water-related actions leading up to this week’s hearing
• 1993-94 - Prescott's sale to the City of Scottsdale of its rights to Central Arizona Project water.
• 1998 - Prescott's purchase of Willow and Watson lakes and associated water rights from the Chino Valley Irrigation district.
• 1999 - Arizona Department of Water Resources declaration of groundwater mining in the Prescott Active Management area.
• 1999 - ADWR's designation of assured water supply to the City of Prescott.
• 2003-2004 - Prescott's exploration of purchase of the CV/CF Ranch northwest of Paulden
• December 2004 - Prescott's purchase of a portion of the JWK Ranch (later the Big Chino Water Ranch) northwest of Paulden.
• 2004 - Prescott's application to ADWR for modification in its assured water supply to reflect Granite Creek water rights associated with Willow and Watson lakes.
• 2005 - ADWR's modification of Prescott's assured water supply.
• October 2007 - Prescott's application to ADWR for modification of its assured water supply to reflect water in the Paulden-area Big Chino sub-basin.
• November 2008 - ADWR's ruling on Prescott's assured water supply modification request, entitling Prescott to pump 8,067 acre-feet of Big Chino water.
• February 2009 - three-day administrative hearing in Prescott to review ADWR ruling on Prescott's modified assured water supply.
PRESCOTT - Three days of hearings barely scratched the surface this week in the administrative appeal of the state's earlier ruling on Prescott's use of Big Chino water.
By the Wednesday afternoon end of what was to be a three-day hearing, only the City of Prescott had concluded its case - during arguments all day Monday and half of the day Tuesday.
Throughout Tuesday afternoon, and for most of the day on Wednesday, the hearing focused on the case that three local appellants filed.
That leaves among those still to make their cases: the remaining 11 local appellants; the Center for Biological Diversity and Sierra Club; and the Arizona Department of Water Resources.
As the hearing concluded Wednesday afternoon, Thomas Shedden, administrative law judge for the Arizona Department of Administrative Hearings, conceded that the review likely would take at least three more days to complete.
"An order (on the date and time of the continuation) will be forthcoming," Shedden said as he closed the hearing.
The proceedings centered on ADWR's ruling in November 2008 that Prescott was entitled to annually pump 8,067 acre-feet of water from the Paulden-area Big Chino sub-basin.
The city earlier had applied for a modification in its assured water supply designation to reflect the water that it plans to import, along with its partner Prescott Valley, through a 30-mile pipeline.
On Monday and Tuesday, experts for the city had testified that the pumping would not affect the flow of the Verde River, which originates about 20 miles southeast of the Big Chino Water Ranch.
But on Wednesday, the case for local appellants Gary Beverly, Tom Atkins, and Anthony Krzysik, maintained just the opposite.
The appellants' expert witness Jon Ford, a geological engineer with a Denver-based firm, was on the stand all day Wednesday.
Ford based much of his testimony on a groundwater model study he is conducting on a 720-square-mile section of the Big Chino sub-basin.
Through his questioning, Mark McGinnis, attorney for the three local appellants, emphasized that the model takes in far more of the sub-basin area than does the one that a consultant conducted for the City of Prescott. (City consultant William Greenslade earlier estimated that his groundwater model involved about 220 square miles of the Big Chino, including the city's ranchland).
Ford reported that his model indicates that Prescott's pumping over the next 100 years would draw down the aquifer by between 600 and 700 feet - a scenario that he said would affect the springs that feed the Upper Verde River.
Comparing the situation to the Little Chino Basin, from which Prescott and other local municipalities pump their water, Ford noted that "draw-down" has occurred at Del Rio Springs, and he predicted a similar result in the Big Chino sub-basin.
Ford's testimony also disputed information Greenslade had provided about a deep layer of low-permeability "playa" consisting of silts and clays near the center of the sub-basin. City officials have long contended that presence of the playa would restrict some of the flow of water within the Big Chino sub-basin, helping to limit the pumping impacts to the Verde River.
But Ford maintained that studies have concluded that the playa would not completely block the flow of groundwater, and that 80 to 85 percent of the water for the Upper Verde River comes from the Big Chino sub-basin.
Throughout the hearing, attorneys representing the city and ADWR objected to much of the information that attorneys for the appellants brought forward.
Repeatedly, however, Shedden allowed the inclusion of virtually every piece of evidence, maintaining that he would rather "err on being over-inclusive, not under-inclusive."
On Wednesday, attorney Paul Eckstein, representing the city, strongly objected to the admission of Ford's groundwater model study, maintaining that the consultant had prepared it for the Salt River Project. Eckstein added that SRP had earlier denied the city's request for information on the data for the study.
When Shedden noted that SRP was not a party to this week's hearing, and was therefore not subject to the request for information, Eckstein responded, "Isn't that nice? They're here, but they're not here. The data is being hidden by SRP."
While a Maricopa County Superior Court judge previously rejected SRP's bid to be a full party to this week's hearing, city and ADWR attorneys have emphasized that SRP and the three local appellants share the same law firm, Salmon, Lewis & Weldon, and that much of the information in the appellants' case mirrored SRP's own objections to the state ruling.
Indeed, ADWR attorney Janet Ronald pointed out that many of the pages of Ford's groundwater study included the SRP logo.
After the admission of Ford's groundwater model study, Eckstein spent several hours on cross-examination. Among the points he emphasized: The ADWR ruling on assured water supply requires that the city must demonstrate that after 100 years of pumping, the depth to groundwater in the aquifer would be less than 1,000 feet.
Ford acknowledged that his study projects that the depth to groundwater - factoring in city pumping and that of other expected growth in the area - would be between 600 and 700 feet after 100 years.
Reader Comments
Posted: Thursday, February 12, 2009
Article comment by:
George Seaman
I wasn't going to make a comment on this article but I think I must comment to "anonymous'" last sentence in their comment. The fact is that SRP already HAS long standing legal senior rights to most of the areas you are describing, especially the mountains and creeks which feed into the river. These are not issues that are at question here, they have already been adjudicated, and they precede Prescott's claims from ARS45-555 by many decades. The current legal question has to do with whether the base flow at the springs should be considered part of their private property claim? This is a very complicated legal as well as scientific question and simply claiming that the city of Prescott ought to be able to pre-empt that private property claim because of proximity and a questionable piece of legislation will not be sufficient. SRP has every right to seek a legal decision regarding their claims, to attempt to keep them out of this discussion is in fact the questionable action. It must also be realized that eventually they will be heard when this gets to litigation, regardless of the outcome of this particualr hearing. What you, and all of the rest of us, need to remember is that there is really no need to take this to litigation, that is completely the doing of the City of Prescott and their high dollar Phoenix lawyers. As I have said before, and as SRP has recently said publicly, this will be a very long and drawn out process so buckle up and hold on!
Posted: Thursday, February 12, 2009
Article comment by:
anonymous
The hearings are very informative. It seems more and more to me that Darth Vader wears a cloak with SRP on it and should be holding a sign that says give me your water. In short I would rather see the water here used here and not for some future nuke plant in Phx. We can debate the uses later . If you live in Yavapai County enviro conscious or not , it should be clear of SRP''s intent by now to lay claim to all water whether or not science proves it or not . In the case of the Verde which makes it all the way to Phoenix they will claim every aquifer and mountain range and creek feed into it.
Posted: Thursday, February 12, 2009
Article comment by:
paul f miller
For any governmental agency to provide the time required to permit full open disclosure of a topic as contentious as the Big Chino issue is to the residents in and near Prescott requires yeoman divergence from business as usual philosophy surrounding contemporary public hearings.
It is not surprising to learn the ADWR hearing recessed with only one voice being heard and that was not the voice of “we” – the people.
Bureaucracy wants this issue to be put to rest ASAP and with minimal exposure and little disclosure of all the issues – short or long term – identified, discussed and resolved. Resolution in such an environment is messy and time consuming not attributes government finds conducive to “top-down” rule. And moreover not a logical extension of our state’s economic mantra of unrestricted growth.
This issue will be layered with another “band-aide” covering a spreading gangrene which all Arizona governmental agencies want “we” – the people – to never see.
Posted: Thursday, February 12, 2009
Article comment by:
Leslie Hoy
The three days of hearings were extraordinarily educational. At stake are not only Prescott's proposed pipeline and the future of the Upper Verde River but also the entire water future of the Upper Verde Watershed. I believe this case will ultimately go to the U.S. Supreme Court where the court will force the State of Arizona to legally recognize the hydrological connection between surface and ground water. Without that determination, it will be impossible for our region to arrive at a sustainable solution for our water and our economic future. What concerns me is whether the citizens of Prescott will have to shoulder too much of the price for this determination. Will the City of Prescott (and the citizens of Prescott) actually pay to take this case all the way to the U.S. Supreme Court or will the city at some point acknowledge that it is not possible to divert large amounts of water from the Big Chino aquifer without impacting the baseflow of the Verde River and look to a regional solution for a water supply? You can follow the hearings on the Office of Adminstrative Hearings Web site at http://www.azoah.com/portal.html. Search by client under the Department of Water Resources or by the docket # 08A-AWS001-DWR.
Posted: Thursday, February 12, 2009
Article comment by:
Very Concerned Citizen
After Arizona Department of Water Resources affirmed the City of Prescott’s application for a determination of physical availability of groundwater in the Big Chino Sub-basin of the Verde Watershed, the Salt River Project (SRP) launched an appeal.
The Salt River Project (SRP) was denied access to the appeal process because they do not reside in the Prescott Active Management Area (AMA). That is in the rules.
So, they ran an end-run around the rules, and found three surrogate appellants that used SRP’s exact appeal language on their appeals, who happen to live in the AMA. SRP’s lawyers argued SRP’s points at the appeal hearing through the use of these surrogate appellants. The surrogate appellants were represented by SRP’s law firm. Sound fishy??
After attending the hearings, it became obvious that SRP was paying for the lawyers and many high priced consultants that the surrogate appellants used in testimony. Not fishy enough??
Some of the surrogate appellant’s testifiers could not point out the three people in the room (the surrogate appellants) that hired them. Wait – there’s more…
Jon Ford, a consultant paid by SRP through their attorneys, has been working for SRP for 22 years. He has billed out over $5 million dollars worth of services to SRP. He developed a model of the Big Chino Sub-basin last year, and billed SRP $300,000 for it. Guess what? His findings were quite different than Prescott’s.
The judge in the case allowed evidence to be presented that was submitted after the deadline date. He calls it “demonstrative evidence” and allowed it even though the Prescott attorneys did not have ample time to review it. The judge did not disallow anything presented by SRP’s lawyers, no matter how many times Prescott and ADWR objected that the data was not relevant to the rules. The chamber echoed “I’m going to allow this” over and over again.
It is clear that SRP is using whatever low-level tactics it can in order to argue against Prescott’s legislative authority to transport water from the Big Chino sub-basin to the AMA. This kangaroo court was a travesty to our legal system. SRP and its lawyers should be ashamed of dodging the appeal rules and subscribing to a complete lack of professional ethics.
Posted: Thursday, February 12, 2009
Article comment by:
Creagan McConnell
As a public participant in this hearing for the past three days I can say that all parties involved have maintained a high degree of professional decorum. Judge Shedden has conducted and will continue a thorough examination of evidence brought forward by both sides of this issue. The attorneys are presenting and arguing with passion and integrity. And the witnesses are well spoken and well educated in their respective fields.
This hearing has been an excellent forum in regard to educating the public on the complications and intricacies of the testimony being heard. I can now begin to understand more of what I have read and heard about in this case. Geologic terms and legalese concerning water issues are not as foreign to my ears as when I first entered the court room. I strongly suggest more citizens consider participating in this hearing when it continues in the near future.
Which ever side your opinion falls on the pipeline issue, sitting in and hearing testimony will enlighten and strengthen your basis of awareness and comprehension. Be a part of the decision making process, get to know how it works and know you have the right to be heard. Creagan McConnell, President, Paulden Area Community Organization
Posted: Thursday, February 12, 2009
Article comment by:
R
Today is Charles Darwin's 200th Birthday! "False facts are highly injurious to the progress of science, for they often endure long; but false views, if supported by some evidence, do little harm, for everyone takes salutary pleasure in proving their falseness." The Descent of Man. Chapter 6.
Posted: Thursday, February 12, 2009
Article comment by:
Sell the water ranch...
The city of Prescott does NOT have water experts. Rather it has hired guns. And not very convincing ones at that. After watching our Mr. Holt's presentation I doubt seriously even he believes what he is being paid to say. His nose, much like Pinnochio's, was growing longer. His responses shorter and less than persuasive.
