Decades-long court battle over water rights impedes economic investment in rural Arizona

CAMP VERDE – The “growth” industry has fueled Arizona’s economy – growth in houses, offices, and places to have fun. Consistent growth is possible, in part, because of prudent water management in the more populated areas of the state. But outside the population hubs, some water rights still are tied up in court, making it hard for developers to plan.

At the exotic animal park Out of Africa, visitors can marvel at a menagerie that includes a rhino, a king cobra and a bevy of wild cats. The marquee attraction at the park is the Tiger Splash, where staff play with tigers around a swimming pool, trying to coax them into the water.

The park gets 150,000 to 200,000 visitors each year, co-owner Bill Jump said. It would like a lot more.

Out of Africa wants to add a hotel, a conference center and, possibly, a water park. For the water park in particular, investors would want assurances the site has a defined water source and buy-in from the community. But at the moment, Jump said, a long-term water plan for something so substantial as a water park isn’t likely.

“Right now, we’re at the risk of a long-term solution being the courts,” he said. “Coming in and making a maybe irrational decision as to how they’re going to allocate water for the whole state.”

In 1980, Arizona designated five Active Management Areas – Prescott, Phoenix, Pinal, Tucson and Santa Cruz – that are heavily reliant on the mining of groundwater. Each AMA pursues a goal of stabilizing water tables under the Arizona Groundwater Code.

Outside of the AMAs, however, water rights often are tied up in the court system. As a result, tens of thousands of users don’t have complete certainty of their rights to a portion of certain key rivers, including the Gila and Little Colorado. A judge in Maricopa County Superior Court is overseeing a lawsuit called the Gila River General Adjudication. Through the adjudication process, the judge will decide on claims to water from several Arizona rivers – or water pumped from wells close to the rivers.

Tens of thousands of users don’t have complete certainty of their rights to a portion of certain key rivers.

The case has dragged on since in the 1970s.

“We think we’re at the point where the adjudication is beginning to impact the ability of these communities to grow in the way they aspire to, and also to sustainably manage water,” said Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University.

Porter recently surveyed a few dozen developers and corporate-site selectors for the report The Price of Uncertainty, which found concerns about water are growing. She also found that uncertainty about water often immediately disqualifies a site from consideration for investment.

“They don’t bother with places where there’s uncertainty about water rights,” she said.

Steve Ayres, economic development director for Camp Verde, said a better solution than a court decree would be for the various claimants to make their own deal, creating a system where water rights can be bought, sold or leased.

“So when the adjudication court comes here, those parties won’t be objecting to one another’s use. They’ll actually have a deal worked out,” he said. “The court would be foolish not to accept a resolution that is acceptable to both parties.”

And there are some glimmers of this kind of solution. Out of Africa, for instance, is paying another company to use less water through a local water-credit program called the Verde River Exchange. That way, the park can offset the 815,000 gallons it uses in Tiger Splash and an otter habitat.

ASU’s Porter thinks local programs like the exchange are promising, but she notes there are more than 50,000 water-rights claims in the Gila River watershed, which includes the Verde and San Pedro rivers.

“To actually make a settlement work, you have to get enough parties to agree to the settlement. That means compromise on all sides.”

She added a settlement could require state legislation, and there already are other water issues that need the Legislature’s attention.

Ayres suspects some water users don’t want the adjudication completed because they’ll be told to stop pumping water to which they’re not entitled. So if a settlement doesn’t happen, water users will have to wait – as they have for decades.

“Is it ever going to get adjudicated? I don’t know,” Ayers said. “I’m 63. I doubt seriously it’ll happen in my lifetime.”

One of the country’s fastest growing areas is SW Utah, where water is cheap

ST. GEORGE, Utah – Brooks Kelly stopped at a display of smart sprinkler-system controllers.

“This six-station timer — it’s got a rebate,” said Kelly, who works the plumbing aisle at the local Home Depot. “You buy it (and the) Washington County water district gives a $99 credit to your water bill. So this is free.”

A conservation ethic is growing in the nation’s second-driest state, which requires all 21 Utah water districts to set conservation goals and incentives, such as the rebates Kelly talked about, that discourage water use.

But Utah also is pushing forward with a plan to tap more water from the Colorado River to serve two counties in the southwestern corner of the state.

St. George is the center of the fastest-growing metropolitan area in the country in the driest part of Utah. It’s an oasis in red-rock country where the Colorado Plateau, the Great Basin and the Mojave Desert overlap. Its location and popularity present a big challenge: how to keep growing with limited water.

It’s a problem the Mormon pioneers who settled this area faced.

“They were sent down here and people told them they couldn’t survive — but they did,” Thompson said. “Told them they couldn’t grow cotton — but they did. Told them they wouldn’t stay — but they did. And that can-do attitude has permeated this culture here for 160, 170 years, and I still see it there.”

For Thompson, working together on conservation now is important. But he’s said for more than a decade that conservation alone can’t support growth here, which is projected to swell from a population of 165,000 to 500,000 by 2060.

That’s why Thompson has led efforts to build the Lake Powell Pipeline — basically a giant straw to draw Colorado River water over 140 miles of desert. The project would deliver enough water for around 99,000 households, more than triple the current number. It would cost over $1 billion.

Developers of the West’s big water projects like the Lake Powell Pipeline are sometimes called “water buffaloes.” But Thompson has his own take on the term.

“I’m not sure I know what a water buffalo is,” he said, “but if it’s someone who’s dedicated their life to water and realizes its importance to the economy and that it is fundamental to the quality of life we expect for ourselves and children, then I plead guilty.”

Pipeline critics see Utah’s water situation in a different light. They question whether the Utah lifestyle really requires so much water.

Looking at the numbers, it’s a fair question.

The average person in the seven Colorado River Basin states uses 164 gallons per day (GPCD). Meanwhile, the state of Utah’s GPCD is 214.

St. George, Utah, is the center of the fastest-growing metropolitan area in the country, according to the Census Bureau.

According to Utah’s federal application for the Lake Powell Pipeline, the state is planning for the project based on 325 GPCD in the St. George area from 2010.

“The real elephant in the room is the price,” said Nick Schou, conservation director for the environmental group Utah Rivers Council.

He said Utahans would consume less if utilities charged what water’s really worth.

“We have the cheapest water that you’ll find anywhere in the United States,” Schou said.

KUER tested Schou’s assertion by comparing a prices in the Colorado River Basin. The question was: What’s the cost of 28,000 gallons of water, the average amount used by St. George residential customers in July?

In nearby Las Vegas, the bill would be $111 dollars. In Denver, $144. And in Tucson, it would be $235.

The picture in Utah is dramatically different. Salt Lake City customers are paying $75 for those 28,000 gallons in hottest month of the year. St. George water customers pay less than $61.

Schou said Utah is decades behind in conservation.

“We’re really looking at a legacy of destruction for water projects we don’t need,” he said. “And it’s really a shame, because we have so many alternatives, so many different options to have a really prosperous growing community.”

Back at the Home Depot in St. George, Roy Schell headed out of the garden section. He lives north of Grand Junction along the Colorado River and travels throughout Utah for his job as a tech consultant.

Schell said he’s surprised by all the turf he sees and all the gushing sprinkler heads.

“We don’t have enough water to not conserve,” he said.

Schell said he and his wife watch their water bills closely. This year he’s watched the water levels drop especially low on the Colorado River, the source residents of the seven Basin states rely on.

But here in southwestern Utah, people don’t seem as concerned. And he said that makes him “a little angry.”

This story is part of a collaborative series from the Colorado River Reporting Project at KUNC, supported by a Walton Family Foundation grant, the Mountain West News Bureau, and Elemental: Covering Sustainability, a new multimedia collaboration between public radio and TV stations in the West, supported by a grant from the Corporation for Public Broadcasting.