Attorney general seeking evidence of groundwater overpumping in rural Arizona, may sue

WENDEN — Attorney General Kris Mayes told La Paz County residents she’s considering a lawsuit to stop corporate farms from overpumping groundwater there and in Cochise County.

Her investigators are seeking examples of harm such as dry wells, cracked foundations and dust on which to build a possible case using the state’s nuisance laws, she said Thursday. She outlined her plans to 150 or so people gathered at a town hall meeting in a combination community center and library 100 miles west of Phoenix. She also urged residents to push state lawmakers to enact legislation to protect rural Arizona’s largely unregulated groundwater.

Arizona’s existing water law leaves most rural parts of the state unshielded from unlimited and unreported pumping, which has allowed corporate dairies, nut companies and alfalfa growers to tap and accelerate depletion of aquifers that support counties including La Paz and Cochise. But state law enables legal action against activities that harm neighbors, Mayes said.

“Arizona is an easy target because we made it easy for them,” Mayes said. “Except that I don’t think nuisance law allows it.”

La Paz County in western Arizona has been the site of some of the state’s most high-profile groundwater politics. It’s where Middle Eastern farm interests have sunk wells to grow and ship alfalfa for dairies in their home countries, and where Gov. Katie Hobbs canceled some state leases enabling such projects. In southeastern Arizona, Cochise County is home to a growing dairy industry that is drawing down the aquifer around Willcox.

While state water law allows deep wells that drain an aquifer, Mayes found a template for action in her office’s filing for an injunction against a proposed Chino Valley aggregate mine last year. That action relied on state law enabling lawsuits against public nuisances, such as the dust and noise that neighbors would have suffered. Ultimately, a neighbor bought the land from the mining company, ending the threat.

Big wells are draining the small ones, residents say

On Thursday, Mayes sought information from La Paz County residents experiencing a nuisance due to overpumping, at times asking for a raise of hands from those whose wells have dried or whose properties have suffered from land subsidence or related monsoon floods. She did the same at a recent listening session in Cochise County.

“I’m doing these town halls to gather, essentially, evidence,” Mayes told The Arizona Republic.

The crowd obliged.

Robert McDermott, who owns a mobile home park serving water to 100 residents east of Wenden, said his 600-foot well went dry. “I had to go to 800 feet,” he said. The cost: $120,000.

Without action to turn back the drawdown, he said, other small businesses and homeowners will face the same fate or worse, needing to drill ever deeper.

“We don’t have time to waste,” McDermott told Mayes. She asked how near his property is to a corporate farm, and he said it’s 3 miles from one operated for United Arab Emirates interests.

Dean Keely, interim pastor at Fellowship Bible Church in Vicksburg, said the church’s well ran dry a decade ago, and that trucks from Saudi farm operations also create a nuisance. The church now buys water for delivery.

Wenden shop owner DeVona Saiter told Mayes that an Arizona Department of Water Resources report about aquifers, including the local McMullen Valley groundwater basin, indicates that most residential wells in the area could run dry within 30 years. It also shows that the land in Wenden has dropped 4 feet in 15 years, a product of groundwater depletion. With desert shrubs removed and the land recontoured for huge farms, she said, flooding has increased.

“We’re sinking,” Saiter said.

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How nuisance laws could protect water

La Paz County Supervisor Duce Minor asked whether a nuisance lawsuit might also prevent a California company from pumping groundwater near Brenda for a proposed hydrogen project. That development, which would use a solar power array to strip hydrogen from the water, is on federal land, which Mayes said would complicate such an effort.

“They would fight me probably pretty hard,” she said. “There’s something called federal supremacy.” But she said she could use her office’s “bully pulpit” to discourage the U.S. Bureau of Land Management from approving the project. The BLM is currently reviewing the plan’s environmental impacts, including on groundwater.

On private and state lands, Mayes said, she could use a nuisance lawsuit to seek compensation for costs such as McDermott’s new and deeper well. Asked how her office could determine whose pumping caused the alleged nuisance, she declined to spell out the “secret sauce” that could undergird such a legal claim, but said her investigators and a hydrogeologist she added to her staff are doing the legwork.

“We’re doing what it takes to show where the damage has come from,” she told The Republic.

Lawmakers are considering a bill that could discourage nuisance suits involving water use.

Republican House Representative Austin Smith introduced House Bill 2124 earlier this year. It would force anyone suing an agricultural operation to pay the party’s legal expenses if the lawsuit attempts to take or reduce their water use. The law would have a chilling effect because of the burden of covering those costs, said Sandy Bahr, director of Sierra Club's Grand Canyon Chapter.

The measure passed the House and is awaiting final action in the Senate.

Some in the crowd at Wenden questioned whether taxpayers might end up getting a bill for leases that the Hobbs administration canceled if the affected farms sue. Mayes said she doubts it.

Others said rural counties need stronger protections than the Department of Water Resources has enacted in nearby Mohave County, where it established an Irrigation Non-expansion Area. That designation prevents new commercial wells, such as those that have tapped the Hualapai Basin for nut farms around Kingman, but does not actually turn back any existing pumping that may already threaten an aquifer.

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Mayes rallies support for a water regulation bill

Urban areas in Arizona have groundwater protections requiring that developers prove they have a 100-year supply before they break ground, but those rules don’t extend to rural Arizona. Debate over how to expand protections statewide without imposing an urban prescription that rural residents and officials may find too onerous has led to several years of stalled legislative proposals to give rural counties more options.

Mayes said La Paz County residents should ask lawmakers to break that bottleneck, which she blamed on Rep. Gail Griffin, R-Hereford. The Cochise County representative has used her position as a committee chair to block some groundwater regulation bills, and has sought unsuccessfully to pass her own vision.

In the current session, Griffin backs Senate Bill 1221, which would allow county supervisors in affected groundwater basins to put a new type of regulatory zone before local voters, then establish a board to oversee it. Critics have said it’s essentially toothless and creates too many obstacles to action by requiring unanimity at multiple stages of the process.

Hobbs this month said she would not sign it, and instead wants a bill that allows the state to create rural groundwater areas.

Griffin’s staff emailed The Republic a comparison on the approaches, calling the governor’s “Bad for Rural Arizona” because it would give “the Department of Water Resources in Phoenix complete control over groundwater to eliminate energy, mining, farming, and ranching jobs in rural AZ.”

Noting that environmental groups based outside of Arizona have championed the governor’s favored bill, HB 2857, the position paper says the state-centered approach would prioritize “bugs, rocks, and weeds over people and economic livelihoods.”

The governor’s approach mandates cooperation with federally recognized tribes who are not subject to state regulation, the comparison says, while also requiring cooperation with government or “private agencies or organizations to engage in coordinated regional water resources planning.”

Republic reporter Clara Migoya contributed to this article.

Brandon Loomis covers environmental and climate issues for The Arizona Republic and azcentral.com. Reach him at [email protected].

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This article originally appeared on Arizona Republic: Arizona AG investigating groundwater overpumping as 'nuisance'