Date:	July 20, 1999
To:	The Honorable Chair and Members Pima County Board of Supervisors	From:	C.H. Huckelberry County Administrator

Re: Attached Discussion Paper -- Water Resources and the Sonoran Desert Conservation Plan

I. Background

The attached paper entitled Water Resources and the Sonoran Desert Conservation Plan describes a comprehensive regional policy direction to achieve meaningful riparian restoration necessary for endangered species compliance. The basic relation of water policy to conservation planning is that:

(1) Continued groundwater mining has caused substantial damage to riparian environments, with an estimated loss of 85 to 95% of quality riparian habitat during the last century.

(2) An estimated 85% of wildlife depends on this riparian habitat for some part of its life cycle, including a long list of endangered, extirpated and imperiled species.

(3) The ongoing implementation of water programs which undermine the purpose of the Endangered Species Act and significantly impact habitat, might preclude implementation of meaningful conservation under the Sonoran Desert Conservation Plan.

(4) Given that two decades of plans administered under the State's Groundwater Code have failed to bring the Tucson Active Management Area on track with the goal of balancing groundwater withdrawal with recharge (safe yield), perhaps the Conservation Plan can assist where other actions have fallen short.

The County has made a commitment to pursue a high conservation standard, however, under any standard that seeks to comply with the Endangered Species Act, the Sonoran Desert Conservation Plan will have to include significant riparian restoration in order to prevent the decline and extinction of some of our imperiled riparian-dependent species, given the largely decimated status of the riparian ecosystem. There is an over-representation of riparian-dependent endangered, extirpated and imperiled species, which we have lost along with most of our perennial streams and the associated ground-water dependent riparian habitat.

Given the status of the riparian ecosystem, the jurisdictions throughout the region face the realistic prospect that a level of restoration will be a condition of the Section 10 permit issued under the Endangered Species Act. Such restoration will require improvement and some changes in the direction of current regional water policy with regard to groundwater mining and underutilization of sources such as effluent.

II. Report

This report describes five water resource problems that have particular significance to the viability of the conservation plan. These include the problems of:

(1) the administration of a system of rights for surface water and groundwater that does not reflect their hydrologic interconnection, or account for the environmental impact of streamflow and groundwater depletion;

(2) the continuation of groundwater mining in the face of a seriously overdrafted aquifer;

(3) the substantial damage that past practices have done to the riparian ecosystem;

(4) the impact of this damage to the species; and

(5) the continued strategies within the community to defer reconciliation of water use with water availability.

After discussion of these problems, five proposals are described in the context of the Sonoran Desert Conservation Plan. These include acceptance of a regional water policy that:

(1) anticipates various types of water uses (including conservation uses) that will make calls on future resources, respects Indian water rights and other federal purposes, and recognizes hydrologic and environmental realities;

(2) achieves safe yield within the Tucson Active Management Area;

(3) implements recovery strategies for riparian systems;

(4) adapts multi-species conservation and recovery programs to riparian restoration plans;

(5) integrates effluent, recharge and reclamation water programs into the regional conservation program so that the best use of renewable resources is made for the community.

The Sonoran Desert Conservation Plan offers the community the opportunity to consider water resource policy from a comprehensive, integrated, regional perspective, rather than a narrow or interest based perspective. As the lead local entity overseeing the development of the Plan, Pima County will support and promote regional water policy which moves toward an ecosystem baseline that requires our basin to be in balance, and eventually results in some level of recovery of natural functions within riverine systems. Also, by acknowledging federal purposes, the Sonoran Desert Conservation Plan anticipates that simply to comply with federal law, we will have to find ways to accommodate more than just the traditional consumptive users of water. As a practical matter, the region must begin to make the right choices now with regard to water resource policy in order to accommodate current and future users.

III. Applicability -- The Gridlock of Local Water Decisionmaking has been Overcome by Protection of Federal Purposes

Public confidence in the direction of water resource policy has eroded to such a point that options offered at the local level are viewed with great skepticism and often destined to fail. Significantly, the major water policy decisions that have succeeded in overriding local concerns, entrenched interests, and the credibility problems created by our history of utilizing the resource within an artificial legal and administrative construct, share certain important characteristics. They are all regional and comprehensive in nature, and involve a federal connection. The most profound interruption to the rules of the local water decisionmaking process has involved the federal government's protection of federal purposes.

(1) Indian Water Rights: During this century, federal purposes have been protected through litigation and settlement attempts which make room within the community's water budget for the reserved right of water for Native American Tribes or Nations. The 1908 United States Supreme Court decision of Winters v. United States held that "the Government of the United States has the power to reserve waters of a river flowing through a Territory and exempt them from appropriation under the laws of the State which that Territory afterwards becomes." Pima County would like to see an end to the long negotiation of claims of the Tohono O'odham Nation, and a settlement which benefits the Nation and the natural resource base of the region.

(2) Federal Purposes Will Increasingly Include Wildlife Protection on Land Under the Jurisdiction of the United States: In 1964, the Supreme Court made it clear that federal purposes includes protection of wildlife on land under the jurisdiction of the United States. In Arizona v. California, which predates enactment of the Endangered Species Act, the Court upheld a reserve right in water sufficient to protect wildlife on federally designated land. In another case thirteen years later, the Supreme Court applied the Winters doctrine to stop groundwater pumping which interfered with the habitat needs of a "unique species of desert fish," the Devil's Hole Pupfish. Cappaert v. United States held: "since the implied-reservation-of-water rights doctrine is based on the necessity of water for the purpose of the federal reservation, we hold that the United States can protect its water from subsequent diversion, whether the diversion is of surface or ground water." Next century, protection of federal purposes such as wildlife and related habitat protection will require accommodation within water resource policy. Federal purposes, when established, override local laws and policies which have depleted water and natural resources by ignoring hydrologic reality and environmental impacts. In light of the current state of the riparian ecosystem, new proposals for groundwater pumping will face credible challenges from those who assert claims to protect federally listed species and their habitats, as such species are threatened or endangered by the proposed water use. A June 8, 1999 speech by the Secretary of the Interior entitled From Reclamation to Restoration encourages Western communities to elevate water policy discussions and deliberations to the level which envisions "a river [as] a living resource, entitled to at least parity with consumptive uses." The Sonoran Desert Conservation Plan will carry forward the protection of federally listed species and their habitats and in doing so, propose a regional and comprehensive approach to water resource utilization, inspired by natural resource protection goals outlined in federal law.

IV. Conclusion

Pima County's participation in water resource management issues is critical to the region's future. Some time ago, it appeared that Tucson Water, along with the smaller water providers, could develop a coherent water strategy for the metropolitan portion of the county. Today, the lack of a coherent water management strategy for the region makes it imperative that each jurisdiction carefully monitor and participate in the development and implementation of a regional water policy.

Furthermore, Pima County is not simply interested in the metropolitan area -- water resources are everywhere precious, no less in rural areas than urban ones. Water supply is not the only issue involved, either. Flood control, wastewater treatment, upland watershed management, land use planning, exotic species, and many other issues must be considered together in formulating regional water policy. These issues have been treated only peripherally in the past.

The Sonoran Desert Conservation Plan provides an effective process for the community to begin more nearly at the beginning with water resource issues.

Last century a conservation ethic expressed itself in Arizona's first policy statements about the scarcity of water, and publicly owned nature of the resource. Next century, beneficial use will have to recognize hydrologic principles and environmental realities in addition to consumptive uses.

The measure of our success will be quantifiable to the degree we reach a positive bottom line with our water budget, and meet the needs of various users.

In a civic sense, we will succeed when rational water policy is the creation of local cooperative efforts, and not always the result of enforcement of federal purposes. The Sonoran Desert Conservation Plan, because it is keyed to the Section 10 process which requires a regional, comprehensive, inclusive and collaborative process, will allow us to make that showing of leadership at the local level.