Silver v. Pueblo Del Sol Water Co.
241 Ariz. 131
Ariz. Ct. App.2016Background
- Pueblo del Sol Water Company sought an Adequate Water Supply Designation (AWSD) to serve the planned Tribute development in Cochise County, relying on groundwater and a 1972 CC&N. Tribute could add thousands of residential units and Pueblo submitted required hydrologic modeling and financial/technical evidence.
- ADWR (the Department) concluded Pueblo met the statutory definition of an adequate water supply (continuous, legally and physically available for 100 years) and adopted an ALJ’s decision approving the designation.
- BLM (on behalf of the San Pedro Riparian National Conservation Area) and individual residents objected, asserting that BLM’s unquantified federal reserved water rights (established when Congress created the Conservation Area in 1988) could preempt state-granted or proposed groundwater use and must be considered.
- The superior court vacated ADWR’s decision, finding ADWR’s regulation defining “legal availability” (R12-15-718(C)) wrongly equated legal availability with possession of a CC&N and failed to account for senior federal claims; it also awarded attorneys’ fees to two objectors.
- On appeal the Court of Appeals upheld ADWR’s overall regulatory framework (physical/continuous/legal availability read together), but held ADWR must consider BLM’s unquantified federal reserved water rights (though ADWR need not itself quantify them), vacated the superior court’s injunction and the fee award, and remanded to ADWR for reconsideration consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ADWR's regulation equating legal availability with a CC&N conflicts with A.R.S. §45-108 | BLM/objects: ADWR must examine senior federal/state rights and constraints, not rely solely on a CC&N | ADWR/Pueblo: legal availability appropriately shown by CC&N and is reasonable administrative interpretation | Regulation is valid in context; CC&N is a permissible indicator of legal availability when considered with physical/continuous analyses; R12-15-718 not invalidated |
| Whether ADWR must consider BLM’s unquantified federal reserved water rights when deciding AWSDs | Plaintiffs: ADWR must treat BLM’s federal claim as potentially controlling and analyze its effect before granting AWSD | ADWR: quantification and priority issues belong exclusively to the Gila Adjudication; ADWR need not consider unquantified federal claims | ADWR must consider BLM’s unquantified federal reserved rights (give them educated consideration) though ADWR need not itself quantify them; the Gila Adjudication remains the forum to fix amounts |
| Whether ADWR must separately analyze impacts of proposed pumping on San Pedro River/Conservation Area instream flows | Plaintiffs: ADWR must evaluate pumping impacts on streams and the Conservation Area’s water right | ADWR: statute/regulations do not require a separate stream-impact analysis for AWSD determinations | ADWR is not required to perform a separate pumping/instream-impact analysis beyond considering effects as part of the statutory AWSD elements and considering BLM’s claim |
| Whether lower court’s attorneys’ fees award under private-attorney-general doctrine was proper | Plaintiffs: their successful vacatur below justified fees | Pueblo/ADWR: award was improper or excessive | Fee award vacated because superior court judgment was vacated; fee entitlement to be reassessed after final resolution on remand |
Key Cases Cited
- Winter s v. United States, 207 U.S. 564 (1908) (established federal reserved water-rights doctrine)
- Cappaert v. United States, 426 U.S. 128 (1976) (federal reserved rights include water necessary to accomplish reservation’s purpose, with priority dated to reservation)
- United States v. Superior Court (Ariz. Dep’t of Water Res.), 144 Ariz. 265 (App. 1985) (adjudication and priority determinations required where water is insufficient to meet demands)
- In re the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source (Gila III), 195 Ariz. 411 (1999) (general stream adjudication is exclusive forum to quantify conflicting water rights, including federal reserved rights)
- Ariz. Water Co. v. Ariz. Dep’t of Water Res., 208 Ariz. 147 (App. 2004) (agency interpretations of water statutes deserve considerable deference; Director charged with technical expertise)